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

The PEOPLE, etc., respondent, v. GUO FA LIU, a/k/a Liu Guo Fa, appellant.

Decided: April 24, 2000

FRED T. SANTUCCI, J.P., DANIEL W. JOY, THOMAS R. SULLIVAN and MYRIAM J. ALTMAN, JJ. Daniel Guttmann, Smithtown, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Kathleen O'Leary of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered August 19, 1997, convicting him of kidnapping in the first degree (three counts), burglary in the first degree, robbery in the first degree (two counts), and unlawful imprisonment in the second degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05[2];  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   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] ).

 There is no merit to the defendant's contention that the police did not have probable cause to arrest him.   A police officer may arrest a person without a warrant when he has probable cause to believe that such person has committed a crime (see, People v. Johnson, 66 N.Y.2d 398, 402, 497 N.Y.S.2d 618, 488 N.E.2d 439;  People v. Pedreira, 143 A.D.2d 778, 779, 533 N.Y.S.2d 481).   Probable cause requires the existence of facts and circumstances which, when viewed together, would lead a reasonable person possessing the expertise of the arresting officer to conclude that an offense has been or is being committed (see, People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015).   A finding of probable cause does not, however, require the same quantum of proof necessary to sustain a conviction (see, People v. Bigelow, supra, at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. McRay, supra, at 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015;  People v. Miner, 42 N.Y.2d 937, 938, 397 N.Y.S.2d 999, 366 N.E.2d 1353).

 When the facts in this case are viewed within the context of the foregoing criteria, it is evident that the police possessed probable cause to believe the defendant had committed the crimes in question.   The defendant was found in the same van that the police previously observed at the ransom location with the same man who picked up the ransom and two other men.   In addition, he was found at a location agreed upon in a telephone conversation on the kidnappers' cellular telephone which the police had intercepted.

The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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


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