PEOPLE v. LOPEZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Julio LOPEZ, Defendant-Appellant.

Decided: February 23, 1999

RUBIN, J.P., MAZZARELLI, ANDRIAS, SAXE, JJ. Melissa Goldstein, for Respondent. Donald A. Harwood, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Edward McLaughlin, J., at hearing;  Alfred Donati, J., at jury trial and sentence), rendered July 29, 1996, convicting defendant of robbery in the second degree and two counts of burglary in the second degree, and sentencing him to three concurrent terms of 4 to 8 years, unanimously affirmed.

 Defendant's suppression motion was properly denied.   The police officers' observation of the complainant, who had a panicked look on his face and was waving to the marked patrol car in an effort to draw the officers' attention while chasing defendant, provided reasonable suspicion to pursue and forcibly detain defendant, and the immediate, spontaneous identification created probable cause to arrest him (see, People v. Liner, 133 A.D.2d 555, 519 N.Y.S.2d 548, appeal dismissed 70 N.Y.2d 945, 524 N.Y.S.2d 673, 519 N.E.2d 619).   Contrary to defendant's argument, the circumstances permitted the police to draw a reasonable inference that a victim was pursuing a perpetrator, not the other way around.

 The court properly exercised its discretion in denying defendant's belated motion for a mistrial made on the basis of defense's counsel's claim that certain testimony by the complainant suggested misconduct on the part of counsel, requiring counsel to become a witness.   Since counsel's cross-examination of the complainant made it abundantly clear to the jury that the matter was a misunderstanding, there was no need for counsel to take the stand and the absence of testimony from counsel caused no prejudice to defendant.

 Defendant's character witness was properly asked whether he had heard about defendant's prior arrest for possession of a weapon, since one of the character traits attested to by the witness was peacefulness, and the question about the arrest properly tested the extent of the witness's knowledge of defendant's reputation for that trait, without exploiting any details of the incident (see, People v. Garrick, 246 A.D.2d 478, 667 N.Y.S.2d 747, lv. denied 92 N.Y.2d 852, 677 N.Y.S.2d 82, 699 N.E.2d 442).   The cross-examination of defendant to clarify certain details of this arrest was also justified since defendant raised the issue on direct examination (see, People v. Fisher, 223 A.D.2d 493, 637 N.Y.S.2d 382, lv. denied 88 N.Y.2d 936, 647 N.Y.S.2d 169, 670 N.E.2d 453).

MEMORANDUM DECISION.