Opinion
September 20, 1990
Appeal from the Supreme Court, New York County, Clifford Scott, J.
This homicide arose out of an argument between defendant and the deceased while they were freebasing cocaine in an apartment with others present. A witness who later became a citizen informant for the police testified during trial that defendant and the deceased argued over the ownership of a pipe. As the deceased reached into his bag, apparently to extract a bottle of liquor, defendant pulled a gun from his waistband, pointed it at the deceased and threatened to kill him. The deceased, in effect, warned the defendant that if he pulled his gun, he had better be ready to use it. The deceased left the apartment, followed by the defendant. Within a few minutes, the informant heard shots fired. Defendant came back into the apartment and stated that he had just shot the deceased in the head and back, and if he weren't dead, he would be paralyzed. The defendant then extracted spent casings from his gun and threw them out the window.
A next door neighbor also testified for the People. From her apartment, through the common wall, she heard an argument, and looking through the peephole of her front door, observed defendant following the deceased. Moments later, she also heard shots fired.
The citizen informant, cooperating with the police, led the police to defendant. When defendant was arrested, a substantial quantity of cocaine was recovered from the sleeve of his sweatshirt.
Defendant was charged with murder in the second degree, and weapons and drug offenses. The jury convicted defendant of both counts of possession of a weapon, but deadlocked on the remaining charges. After being advised of the jury's partial verdict, defendant pleaded guilty to a reduced charge of manslaughter in the first degree and attempted criminal possession of a controlled substance in the third degree.
We note the operability of the gun with which defendant shot the deceased was established by circumstantial evidence. We concur in the jury's assessment of the evidence. Under the circumstances of this case it defies logic to conclude that the gun was inoperable.
We also conclude that the informant was reliable, and that the police acted with probable cause. (People v. Johnson, 66 N.Y.2d 398. ) The evidence makes clear that this was a citizen informant, and we note the presumptive credibility of a private citizen informant (see, People v. Cruz, 149 A.D.2d 151). We also note that the informant offered admissions against his own penal interests, thereby enhancing his reliability (People v. Johnson, supra), and that the information he possessed was sufficiently detailed to indicate both his reliability and the basis of his knowledge (see, People v. Smith, 107 A.D.2d 633). Hence, the police had probable cause to arrest. With respect to the search of the sweater, we note that the sweater was within defendant's "grabbable" area, the search was contemporaneous with the arrest and was conducted in the same location as the arrest (see, People v. Smith, 59 N.Y.2d 454). Hence, we find no infirmity in the search.
Defendant's challenge to the court's submission, sua sponte, of a no adverse inference charge is unpreserved as a matter of law (CPL 470.05). If we were to review the substance of the charge, we would affirm (People v. Diggs, 151 A.D.2d 359, lv denied 74 N.Y.2d 895, 900, 76 N.Y.2d 787). While it was error to submit the charge absent defendant's request (CPL 300.10), in light of the overwhelming evidence of guilt, the error was harmless beyond a reasonable doubt. We have considered defendant's remaining contentions and find them to be meritless.
Concur — Murphy, P.J., Ross, Carro and Rosenberger, JJ.