PEOPLE v. MALIK (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered December 17, 1996, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by the defendant to law enforcement officials.

ORDERED that the judgment is affirmed.

 In an attempt to rob a subway token booth, the defendant and two other individuals set it on fire, killing the token clerk inside.   The defendant's claim that the hearing court erred in denying that branch of his omnibus motion which was to suppress statements he made to the police because they were the fruit of an unlawful arrest and were involuntarily made is without merit.   Contrary to the defendant's contentions, the police had probable cause to arrest him because one of his accomplices implicated him in the commission of the crime (see, People v. Walker, 228 A.D.2d 798, 800, 644 N.Y.S.2d 368;  People v. Butler, 201 A.D.2d 662, 663, 608 N.Y.S.2d 263;   People v. Pennix, 166 A.D.2d 729, 730, 561 N.Y.S.2d 480).  Furthermore, a review of the totality of the circumstances (see, People v. Woods, 141 A.D.2d 588, 529 N.Y.S.2d 194), indicates that the defendant's statements were made voluntarily (see, People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188;  People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179;  People v. Sobchik, 228 A.D.2d 800, 802, 644 N.Y.S.2d 370;   People v. Springer, 221 A.D.2d 386, 633 N.Y.S.2d 508;  People v. Pennix, supra;  People v. Benitez, 128 A.D.2d 628, 513 N.Y.S.2d 26;  People v. Croney, 121 A.D.2d 558, 559, 503 N.Y.S.2d 608).  Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion.

 The defendant's contention that the testimony of a jailhouse informant was improperly admitted at trial is without merit.   The informant was not an agent for the police with respect to the testimony that was admitted (see, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246;  People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306).  Although the informant's testimony consisted of evidence of uncharged crimes, under the circumstances of this case, it was admissible because it was relevant to the defendant's consciousness of guilt (see, People v. Marin, 65 N.Y.2d 741, 746, 492 N.Y.S.2d 16, 481 N.E.2d 556;  People v. Moses, 63 N.Y.2d 299, 308, 482 N.Y.S.2d 228, 472 N.E.2d 4;  People v. Brown, 239 A.D.2d 429, 658 N.Y.S.2d 334;  People v. Reyes, 162 A.D.2d 357, 556 N.Y.S.2d 916;  People v. Warner, 126 A.D.2d 788, 790, 510 N.Y.S.2d 292).

 The defendant's claim that the verdict was not supported by legally sufficient evidence is unpreserved for appellate review (see, CPL 470.05[2] ).  In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

MEMORANDUM BY THE COURT.