Opinion
April 13, 1992
Appeal from the County Court, Rockland County (Nelson, J.).
Ordered that the judgment is modified, on the law, by vacating so much of the sentence as directed the defendant to pay restitution to the Rockland County Narcotics Task Force; as so modified, the judgment is affirmed.
The defendant contends, inter alia, that the physical evidence against him should have been suppressed because the police chased and arrested him without probable cause, and the police improperly searched his motel room the following day without a warrant. We disagree.
The police chased the defendant because they believed him to be Alfred Walker, for whom they had a warrant. When the police called out the name "Walker", the defendant and two other men fled into the room of Linda Ash. Inasmuch as the police had probable cause to arrest Walker, the officers' understandable mistake in chasing and arresting the defendant did not amount to unreasonable action on their part (see, People v Fabian, 126 A.D.2d 664; Hill v California, 401 U.S. 797; People v Howard, 50 N.Y.2d 583, cert denied 449 U.S. 1023). Furthermore, as the defendant and the other two men entered Linda Ash's room, the police heard a gun shot from within the room. Thus, the police had additional probable cause to enter the room (see, People v Howard, supra). Moreover, the defendant is without standing to contest the search of Ash's room. Under the circumstances, he had no expectation of privacy while in Ash's room (see, People v Ponder, 54 N.Y.2d 160).
The defendant also contends that he was denied the effective assistance of counsel because trial counsel, inter alia, failed to adequately seek suppression of the physical evidence. Although the pretrial omnibus motion made by defense counsel did contain a paragraph requesting the suppression of illegally seized evidence, it did not contain any factual allegations in support of that branch of the motion. However, even if the facts were stated, suppression would not have been granted, and it cannot be said that any failure in this respect constituted ineffective assistance (see, e.g., People v Belgrave, 143 A.D.2d 103; People v Boero, 117 A.D.2d 814). None of the defendant's remaining arguments regarding trial counsel's conduct warrant a finding that the defendant was denied meaningful representation (see, People v Baldi, 54 N.Y.2d 137).
At the time the sentence was imposed, the court lacked authority to direct the defendant to make restitution of the $100 expended during an undercover drug sale involving the defendant (see, People v Rowe, 75 N.Y.2d 948; People v Williams, 171 A.D.2d 713). Since this restitution was unauthorized under Penal Law § 60.27, that provision of the sentence must be vacated. We note that Penal Law § 60.27 was amended effective November 1, 1991, to authorize restitution to law enforcement agencies for unrecovered funds used in the purchase of drugs as part of investigations leading to convictions (see, Penal Law § 60.27).
We have examined the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Rosenblatt, Miller and Santucci, JJ., concur.