Opinion
February 2, 1990
Appeal from the Ontario County Court, Reed, J.
Present — Dillon, P.J., Callahan, Pine, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to raping and sodomizing a 16-year-old girl whom he had observed sleeping in a car that had run out of gas near defendant's rural home on September 28, 1978. Later that morning, defendant was questioned by police and gave a written statement in which he admitted breaking into the car and forcing the female occupant to engage in sexual and deviate sexual intercourse. On appeal, defendant contends that there was no probable cause for his arrest and thus County Court erred in denying his motion to suppress the items of physical evidence taken from his home as well as his subsequent statement to the police. We disagree. The record establishes that the police were investigating a kidnapping and rape that had occurred in a remote area in the early morning hours of the day. The crime occurred a short distance from defendant's home and defendant matched the description of the assailant provided by the victim. When the police went to his home to question him, they observed in plain view clothing matching that described by the victim. Also, it had been raining and defendant admitted that the wet shoes in the closet of his home belonged to him. Given those circumstances, the police had probable cause to take defendant into custody (see, CPL 140.10). Defendant's additional contention that he was denied his constitutional right to counsel in view of his representation in an unrelated criminal proceeding (see, People v Rogers, 48 N.Y.2d 167) must be rejected. There is no evidence in the record that the interrogating officer had any knowledge of the unrelated proceeding or of defendant's representation by counsel therein (see, People v Johnson, 61 N.Y.2d 932, 934; People v Kinchen, 60 N.Y.2d 772; People v Washington, 111 A.D.2d 418, lv denied 66 N.Y.2d 768; People v Donovon, 107 A.D.2d 433, 440-442).