Opinion
June 1, 1987
Appeal from the Supreme Court, Kings County (Grajales, J.).
Ordered that the judgment is affirmed.
Our review of the record reveals that there was no probable cause for the June 8, 1983, arrest of the defendant. Although a police officer is normally entitled to act on the strength of a radio transmission, the presumption of probable cause in the instant case was rebutted by the evidence adduced at the suppression hearing (see, People v Lypka, 36 N.Y.2d 210, 213-214). The record indicates that the arresting officer acted upon a radio transmission which was based solely upon a telephone call to the police from an identified individual who described the defendant as the person who had shot his brother. The record further indicates, however, that that individual was not an eyewitness to the shooting and had obtained his information from an anonymous caller.
Nevertheless, no fruits of that unlawful arrest were admitted in evidence at the defendant's trial. The record indicates that a statement given by the defendant in the police station subsequent to his arrest on June 8, 1983 was not admitted into evidence and therefore the defendant's contention that the statement was the fruit of the unlawful arrest is purely academic. In addition, the photograph of the defendant which was used in subsequent photographic identifications of the defendant in July 1983 was from an arrest prior to June 8, 1983. Therefore, the photographic identifications were not tainted by the unlawful arrest on June 8 (People v Pleasant, 54 N.Y.2d 972, 974, cert denied 455 U.S. 924). We note that the lineup identification was made subsequent to the photographic identifications and was therefore also not tainted by the arrest on June 8.
We also reject the defendant's contention that the bench conference held by the Trial Judge "to ascertain whether the [alibi] witness refrained from speaking under the advice of defense counsel" was improper (People v Dawson, 50 N.Y.2d 311, 323). We note that the defendant failed to preserve for our review his contention that the prosecutor improperly cross-examined his alibi witness as to his failure to come forward with exculpatory information (see, People v Thomas, 128 A.D.2d 743). Finally, we find that the jury was properly charged as to the witness's failure to come forward (see, People v Dawson, supra). Weinstein, J.P., Spatt, Sullivan and Harwood, JJ., concur.