PEOPLE v. DUNNELL (2009)

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered August 1, 2006, as amended on or about December 4, 2008, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as second felony offender, to a term of 2 to 4 years, unanimously affirmed.

 Following this Court's remand (50 A.D.3d 606, 859 N.Y.S.2d 406 [2008] ), the hearing court properly denied defendant's suppression motion.   The police responded to a radio transmission indicating that there was a robbery in progress and observed an identified citizen informant holding defendant against a car.   The hearing evidence supports the conclusion that when the police arrived, the complainant continued to hold defendant and exclaimed that defendant had robbed him, whereupon the police handcuffed defendant, despite defendant's assertion that the other man had robbed him.   We conclude that the police had probable cause for defendant's arrest at the moment of the handcuffing.   The requirements of probable cause (see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969];  Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964] ) were satisfied because the complainant's status as a citizen informant established his reliability (see People v. Hetrick, 80 N.Y.2d 344, 348, 590 N.Y.S.2d 183, 604 N.E.2d 732 [1992];  People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227 [1975] ), and he was speaking from personal knowledge.   Moreover, his behavior in continuing to hold defendant after the police arrived was more consistent with that of a crime victim than a perpetrator.   While defendant's claim to have been the actual victim may have raised a credibility issue to be resolved at trial, it did not undermine probable cause for his arrest (see People v. Taylor, 61 A.D.3d 537, 877 N.Y.S.2d 70 [2009];  People v. Roberson, 299 A.D.2d 300, 750 N.Y.S.2d 597 [2002], lv. denied 99 N.Y.2d 619, 757 N.Y.S.2d 830, 787 N.E.2d 1176 [2003] ).   Even if the circumstances could be viewed as providing probable cause to arrest both men on each other's complaints (cf. Matter of Holtzman v. Hellenbrand, 130 A.D.2d 749, 515 N.Y.S.2d 843 [1987], lv. denied 70 N.Y.2d 607, 521 N.Y.S.2d 224, 515 N.E.2d 909 [1987] [whether to permit a defendant to make a cross complaint against an accuser is a matter of prosecutorial discretion] ), this did not render defendant's arrest unlawful.

 The court properly exercised its discretion in denying defendant's request for a mistrial or lengthy midtrial continuance for the purpose of obtaining further information about the underlying facts of one of the complainant's prior convictions (see People v. Pitts, 255 A.D.2d 220, 681 N.Y.S.2d 242 [1998], lv. denied 93 N.Y.2d 976, 695 N.Y.S.2d 62, 716 N.E.2d 1107 [1999] ).   Defendant received ample opportunity to cross-examine the complainant about this conviction and its underlying facts, and his suggestion that the additional information would have had significant probative value is speculative.

The court's curative instruction was sufficient to prevent the challenged portion of the prosecutor's summation from causing any prejudice.