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Judgment of the Supreme Court, New York County (Lang, J., at suppression hearing; Shainswit, J., at Wade hearing; and Dennis Edwards, Jr., J., at trial and sentence), rendered February 6, 1979, convicting defendant of manslaughter in the first degree and sentencing him to a term of imprisonment of from 12V2 to 25 years, affirmed. Our dissenting brother would suppress the gun, established by ballistics tests to be the weapon which fired the fatal shots, upon the ground that the back-up evidence necessary to establish probable cause was not presented at the suppression hearing (People v Havelka, 45 NY2d 636; People v Lypka, 36 NY2d 210). We disagree. Although Police Officer Selletti received the information which led to defendant’s arrest via a police radio message from Police Officers Brandefine and Tortora, the latter could add nothing to the testimony of Selletti, since the information possessed by them was based upon hearsay derived from Davila, who reported that a man had been shot. The subsequent description given by Davila, again conveyed to Selletti by radio message, that two male Hispanics, the taller one wearing a flowered shirt, the shorter wearing a tee shirt with a number on it, was not disputed at the suppression hearing, although question was raised as to which of the two was wearing the tee shirt at the time of apprehension. It is this failure to dispute the description given by Davila, other than which of the two was wearing the tee shirt, which distinguishes this case from both Lypka and Havelka. In Lypka, the police relied upon consent to justify the search. There the defendant, his brother and their parents testified that the “consent” was no more than a submission to police authority. By consequence the prosecution was required to come forward not only to show that they had received information establishing probable cause from the police authorities of a neighboring State, but that the information received was reliable. In Havelka the defendant, through the testimony of a member of the “Tribe”, sharply disputed the circumstances of the seizure and search. The police were thereupon called upon to come forward with proof establishing their right to conduct the search. Since they failed to do so, the motion to suppress was granted. Thus, in each of these cases there were fact questions which were required to be decided before the legal issue of “probable cause” could be determined. In the case before us, however, the issue is wholly different. The information upon which the seizure and search was made was uncontested by defendant. There was no request by experienced counsel for defendant that Brandefine, Tortora or Davila be produced. The question here raised is whether that information at the disposal of the apprehending officers supplied a solid basis, i.e., probable cause, for the seizure of defendant, handcuffing him, patting him down and finding the weapon in his sock. The suppression court held that it warranted a stop and frisk. We go further and hold that it supplied probable cause for a full-blown search (People v Ponder, 54 NY2d 160). We think it appropriate to note one further point. At the Wade hearing held subsequent to the suppression hearing, all of the prosecution witnesses involved in the suppression issue testified. The prosecution produced Davila, who conveyed the information of the shooting and the description to Police Officers Brandefine and Tortora,
*552 whose radio messages alerted Selletti and Pacone, who apprehended defendant, to the direction taken by him as well as a description of him. They were all subject to cross-examination. If defendant felt that the testimony of any of them was such that it warranted a reopening of the suppression hearing he could have moved for that relief. He is not entitled to a reversal of his conviction simply because the proof which he now contends should have been produced at an earlier hearing, but which he did not then demand, was produced at a later hearing, but still in advance of trial and while he still had the opportunity to seek suppression based on that evidence. Concur — Birns, J. P., and Bloom, J.; Sandler, J., concurs in a separate memorandum; Silver-man, J., concurs in the memorandum decision of the court and also concurs separately in a memorandum; and Carro, J., dissents in a memorandum all as follows.
Document Info
Citation Numbers: 86 A.D.2d 551
Judges: Carro, Sandler, Silverman
Filed Date: 1/21/1982
Precedential Status: Precedential
Modified Date: 1/13/2022