PEOPLE v. MILLER (1997)

 County Court properly denied the motion to suppress physical evidence seized following defendant's arrest.   The contention of defendant that the police lacked probable cause for his arrest is meritless.   Where an arresting officer lacks personal knowledge sufficient to establish probable cause, an arrest will nevertheless be lawful if the officer “ ‘acts upon the direction of or as a result of communication with’ ” a fellow officer or another police department with the requisite probable cause (People v. Ramirez-Portoreal, 88 N.Y.2d 99, 113, 643 N.Y.S.2d 502, 666 N.E.2d 207;  People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028).   In this case, the victim of a menacing charge informed a police officer that defendant had pointed a gun at her and threatened to harm her, that defendant had fired the handgun in an unrelated incident a few days before, and that defendant always had the handgun on his person or nearby.   Based on that information, the investigating officer had probable cause to believe that defendant had committed the crime of menacing (see, People v. Motter, 235 A.D.2d 582, 653 N.Y.S.2d 378, lv. denied 89 N.Y.2d 1038, 659 N.Y.S.2d 869, 681 N.E.2d 1316;  People v. Lee, 229 A.D.2d 504, 505, 645 N.Y.S.2d 322, lv. denied 89 N.Y.2d 925, 654 N.Y.S.2d 727, 677 N.E.2d 299).  The investigating officer prepared an arrest warrant application and distributed a departmental memorandum and accompanying profile of defendant stating that a warrant application was pending for the arrest of defendant on a menacing charge and that defendant was in possession of a handgun.   Defendant was arrested by fellow officers who had read the memorandum and profile of defendant.   Because the investigating officer had probable cause to arrest defendant, the arresting officers are deemed to have had probable cause (see, People v. Ramirez-Portoreal, supra, at 113, 643 N.Y.S.2d 502, 666 N.E.2d 207;  People v. Maldonado, supra, at 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028;  People v. Rosario, 78 N.Y.2d 583, 589, 578 N.Y.S.2d 454, 585 N.E.2d 766, cert. denied 502 U.S. 1109, 112 S.Ct. 1210, 117 L.Ed.2d 448).  Moreover, defendant's flight upon observing the officers approach provided additional justification for the arrest (see, People v. Corbriette, 199 A.D.2d 204, 606 N.Y.S.2d 4, lv. denied 83 N.Y.2d 803, 611 N.Y.S.2d 139, 633 N.E.2d 494;  People v. Tidwell, 122 A.D.2d 289, 504 N.Y.S.2d 787).

 Defendant contends that, because the People failed to establish a chain of custody with respect to his clothing, the court erred in admitting the clothing into evidence.   We disagree.   Although the chain of custody was broken, the People's proof provided reasonable assurances that the clothing was the same as that recovered from defendant and that its condition was unchanged (see, People v. Julian, 41 N.Y.2d 340, 342-343, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  People v. Moyer, 186 A.D.2d 997, 588 N.Y.S.2d 457, lv. denied 81 N.Y.2d 844, 595 N.Y.S.2d 743, 611 N.E.2d 782).   Thus, the deficiency in the chain of custody affects only the weight of the evidence, not its admissibility (see, People v. Stewart, 187 A.D.2d 1028, 1029, 593 N.Y.S.2d 478, lv. denied 81 N.Y.2d 893, 597 N.Y.S.2d 955, 613 N.E.2d 987).

We further conclude that defendant's sentence is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM: