The People, etc., appellant, v. David Read, respondent. (2010)

Argued-May 24, 2010

DECISION & ORDER

Appeal by the People from an order of the County Court, Rockland County (Bartlett, J.), entered November 6, 2009, which, after a hearing, granted that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the order is reversed, on the law, and that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials is denied.

The police responded to a radio dispatch call concerning the complainant's allegation that her former husband had violated an order of protection by making harassing telephone calls to her.   The police arrested the defendant based upon the complainant's statements.   Upon his arrest, the defendant made several threatening remarks to the complainant in the presence of the police.   These statements were suppressed, however, because the County Court found that the police lacked probable cause to arrest the defendant, and the statements were made as a direct result of his illegal arrest.

The County Court erred in granting that branch of the defendant's omnibus motion which was to suppress his statements on the basis that the police lacked probable cause to arrest him.   A statement of a complainant, an identified citizen, is assumed to have veracity and is sufficient to establish probable cause for arrest (see People v. Sanders, 239 A.D.2d 528;  People v. Boykin, 187 A.D.2d 661;  People v. Cotton, 143 A.D.2d 680).   Unlike a paid or anonymous informant, an eyewitness victim of a crime can provide probable cause for the arrest of her assailant despite the fact that her reliability has not been previously established or her information corroborated (see People v. Gonzalez, 138 A.D.2d 622).   Probable cause is established absent materially impeaching circumstances, where, as here, the victim of an offense communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator (id.).   Here, there was no need for the police officers to have verified the complainant's accusations prior to arresting the defendant.

The police are prohibited from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest (see Payton v. New York, 445 U.S. 573, 576).   Here, however, the complainant, who claimed to also live in the apartment, gave consent for the police to enter (see generally People v. Levine, 174 A.D.2d 757).   When a person with ostensible authority consents either explicitly or tacitly to the police presence in the home, then the rule espoused in Payton is not violated (see People v. Russo, 243 A.D.2d 658).   Therefore, the police officers lawfully entered the apartment and ultimately executed a lawful arrest based on the information given to them by the complainant (see generally People v. Pegues, 208 A.D.2d 773).

The defendant's spontaneous statements, made after his arrest but before Miranda warnings (see Miranda v. Arizona, 384 U.S. 436) were administered, were not triggered by any police conduct which could reasonably have been expected to evoke a declaration from him (see People v. Baliukonis, 35 AD3d 626).   Therefore, the defendant's post-arrest statements should not have been suppressed.

In light of the foregoing, the People's remaining contentions have been rendered academic.

MASTRO, J.P., COVELLO, BELEN and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court