Opinion
October 1, 1993
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Denman, P.J., Green, Balio, Fallon and Boehm, JJ.
Judgment unanimously affirmed. Memorandum:
There is no merit to the contention that, because defendant's warrantless arrest was unlawful under Payton v. New York ( 445 U.S. 573, 590; see, People v. Harris, 77 N.Y.2d 434), defendant's statements and certain physical evidence should have been suppressed. Defendant was not arrested in his own apartment but in the common hallway of a four-apartment building, where he had broken into an apartment, and thus had no reasonable expectation of privacy (see, People v. Lewis, 172 A.D.2d 775, 776, lv denied 78 N.Y.2d 969; People v. Marzan, 161 A.D.2d 416, lv denied 76 N.Y.2d 860). The fact that defendant entered the hallway at the suggestion of a police officer did not render the arrest unlawful (see, People v. Minley, 68 N.Y.2d 952). With respect to the hallway, defendant failed to satisfy his burden of establishing that he had a reasonable expectation of privacy in that common area of the building (see, People v. Rodriguez, 69 N.Y.2d 159, 163; People v. Green, 134 A.D.2d 865, 866, lv denied 71 N.Y.2d 897).
Although the police had probable cause to arrest defendant before taking him into custody, their failure to file a felony information and to obtain an arrest warrant before arresting him did not affect the admissibility of the seized evidence or of his statements. As Supreme Court correctly observed in its amended decision, the police are not required to file an accusatory instrument and obtain an arrest warrant every time they have probable cause to arrest, regardless of the circumstances. Here, unlike People v. Cooper ( 101 A.D.2d 1), the statements and evidence seized were not tainted by post-arrest "unnecessary delay" in filing an accusatory instrument, the time when defendant's right to counsel would attach (CPL 140.20; People v. Blake, 35 N.Y.2d 331).
Supreme Court properly rejected the contentions that the Miranda warning was improperly administered and that defendant was mentally incapable of waiving his rights. Unless clearly erroneous, a hearing court's findings should not be disturbed (People v. Prochilo, 41 N.Y.2d 759, 761; People v. Pitsley, 185 A.D.2d 645, lv denied 81 N.Y.2d 792; People v. Williams, 174 A.D.2d 969, lv denied 78 N.Y.2d 1015). The record supports Supreme Court's findings that defendant was fully informed of his Miranda rights and that his waiver of them was knowing, voluntary and intelligent.
Defendant was not deprived of the right to be present when prospective jurors and a sworn juror were questioned at the bench by the court. Because the trial was held before People v Antommarchi ( 80 N.Y.2d 247, rearg denied 81 N.Y.2d 759), defendant had no right to be present at bench conferences unless they "concern[ed] the very same witnesses and events which were to be involved in the case to be tried" (People v. Mitchell, 80 N.Y.2d 519, 529). With respect to the sidebars during trial, the record discloses that, in the circumstances here, defendant's presence would have been "`useless, or the benefit but a shadow.' (Snyder v. Massachusetts, 291 US [97,] at, 106-107)" (People v. Velasco, 77 N.Y.2d 469, 473; see also, People v. Sloan, 79 N.Y.2d 386, 392).
Given the nature of the crime, defendant's sentence is neither harsh nor excessive.