Opinion
September 20, 1990
Appeal from the Supreme Court, New York County, Thomas Galligan, J., Daniel FitzGerald, J.
Complainant's testimony that he was the victim of a 1:00 A.M. gunpoint robbery, perpetrated by the defendant and his companion, was corroborated by two arresting officers and a civilian who witnessed the suspects attempting to take additional property from the complainant after the complainant had already been shot by the defendant. Additionally, a signed written confession by the defendant, fully inculpating him in the crime, was admitted into evidence.
Defendant was apprehended within minutes of the crime, by nonarresting officers who, pursuant to a radio dispatch of a fleeing robbery suspect, responded to the corner of Prince and Crosby Streets in Manhattan, and observed the defendant, who matched the radio description of a male wearing a burgundy running suit with a white stripe. Sergeant Groth, according to his own testimony, allegedly "grabbed" the defendant and "placed him under arrest". Within moments, the officers who witnessed the crime arrived and, according to their testimony, they arrested the defendant after speaking with Sergeant Groth.
Defendant now contends there was no probable cause to justify the "arrest" made by Sergeant Groth. We find that defendant's failure to challenge the reliability of the information conveyed over the radio at the hearing precludes him from bringing such challenge on appeal (People v. Jenkins, 47 N.Y.2d 722, 724). In any event, the evidence at the hearing supports the conclusion that defendant was merely detained by Sergeant Groth, based upon reasonable suspicion of his involvement in a recent robbery. There is no evidence to show that defendant, while momentarily held by Sergeant Groth, was handcuffed, interrogated, searched, read his Miranda warnings or otherwise restrained by other than minimal force for a very brief period while awaiting a showup (see generally, People v. Hicks, 68 N.Y.2d 234, 240).
We also find complainant's hospital showup identification of the defendant and his cohort to be a product of memory rather than police suggestiveness. Complainant, upon observing the suspect in the hospital emergency room, spontaneously pointed to the defendant and identified him as "the guy who shot me" and then motioned toward the cohort, identifying him as the one who "took my money." Additionally, we note that the People proved by clear and convincing evidence that there was an independent source for the victim's in-court identification of the defendant (see, Manson v. Brathwaite, 432 U.S. 98).
We further find the hearing court properly relied on the detective's credible testimony that defendant was alert, responsive and acting of his own design when he confessed to the crime. The hearing court was correct in rejecting defendant's bare allegation that his signed confession had been coerced.
It was also proper for the trial court to deny defendant's motion to charge the jury on the lesser included offense of criminal possession of a weapon in the third degree. Defendant contends he did not intend to use the gun and that it fired accidentally. However, given defendant's confession and complainant's testimony, both of which related how the defendant used the gun to force complainant to relinquish his property and how the gun eventually discharged, wounding the complainant, there is no reasonable view of the evidence under which it can be concluded that defendant committed the lesser crime without committing the greater (see, CPL 300.50; People v. Glover, 57 N.Y.2d 61). Indeed, when the complainant initially balked at surrendering his property to defendant, who claimed to be a police officer, the defendant, according to complainant, pointed the gun at complainant and stated "this [the gun] is my badge."
Contrary to defendant's further claim, the evidence in the record was plainly sufficient to support defendant's convictions.
We have examined defendant's remaining points and find them to be both unpreserved and meritless.
Concur — Murphy, P.J., Ross, Carro and Rosenberger, JJ.