PEOPLE v. MALDONADO (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered March 9, 2006, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification testimony and his statement to law enforcement personnel.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the court properly denied those branches of his omnibus motion which were to suppress identification testimony and his postarrest statement to law enforcement personnel, since the evidence presented by the People demonstrated that the police had probable cause to arrest him (see CPL 140.10[1][b];  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).  Pursuant to the Aguilar/Spinelli test (see Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723;  Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637), where probable cause is predicated in whole or in part upon the hearsay statement of an informant, it must be demonstrated that the informant is reliable and that the informant had a sufficient basis for his or her knowledge (see People v. Parris, 83 N.Y.2d 342, 349, 610 N.Y.S.2d 464, 632 N.E.2d 870;  People v. DiFalco, 80 N.Y.2d 693, 696, 594 N.Y.S.2d 679, 610 N.E.2d 352;  People v. Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).  The basis of knowledge and veracity requirements of the Aguilar/Spinelli test are analytically independent and each must be satisfied (see People v. DiFalco, 80 N.Y.2d at 697, 594 N.Y.S.2d 679, 610 N.E.2d 352).

 The veracity requirement of the Aguilar/Spinelli test was satisfied here, since “[a]n identified citizen informant is presumed to be personally reliable” (People v. Parris, 83 N.Y.2d at 349, 610 N.Y.S.2d 464, 632 N.E.2d 870;  see People v. Reid, 184 A.D.2d 668, 669, 584 N.Y.S.2d 873).  In addition, the basis of knowledge requirement of the Aguilar/ Spinelli test was satisfied here by the People's showing that the information furnished by the informant was sufficiently detailed and that it was corroborated by police observation of conduct that suggested or directly involved criminal activity (see generally People v. Bigelow, 66 N.Y.2d at 423–424, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. Elwell, 50 N.Y.2d 231, 237, 428 N.Y.S.2d 655, 406 N.E.2d 471;  People v. Isaac, 206 A.D.2d 545, 546, 616 N.Y.S.2d 46;  see People v. Powell, 234 A.D.2d 397, 398, 651 N.Y.S.2d 102;  People v. Dollison, 221 A.D.2d 654, 655, 634 N.Y.S.2d 194).

The defendant's contention that he was denied a fair trial by certain remarks made by the prosecutor during his summation is unpreserved for appellate review (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Muniz, 44 A.D.3d 1074, 1075, 844 N.Y.S.2d 396;  People v. Bermudez, 36 A.D.3d 928, 929, 828 N.Y.S.2d 554;  People v. Rodari, 2 A.D.3d 756–757, 768 N.Y.S.2d 615;  People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57;  People v. Morris, 148 A.D.2d 552, 553, 540 N.Y.S.2d 186).  In any event, the challenged remarks did not deprive the defendant of his right to a fair trial, as “the ․ remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the defense counsel's summation” (People v. Gillespie, 36 A.D.3d 626, 627, 831 N.Y.S.2d 83;  see People v. Dorgan, 42 A.D.3d 505, 838 N.Y.S.2d 787;  People v. McHarris, 297 A.D.2d at 825, 748 N.Y.S.2d 57;  People v. Evans, 291 A.D.2d 569, 738 N.Y.S.2d 244;  People v. Brown, 272 A.D.2d 338, 339, 708 N.Y.S.2d 302;  People v. Clark, 222 A.D.2d 446, 447, 634 N.Y.S.2d 714;  People v. Vaughn, 209 A.D.2d 459, 460, 619 N.Y.S.2d 573).