People v. O'Connor — 222 A.D.2d 705

Majority

p. 705

The People of the State of New York, Respondent, v Jose O’Connor, Appellant.

[636 NYS2d 77]

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered December 13, 1993, convicting him of kidnapping in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

In December 1992, the defendant and several codefendants (see, People v Martinez, 222 AD2d 702 [decided herewith]), kidnapped a victim and held him in a building on the Horace Harding Expressway in Queens for several days. The perpetrators demanded approximately $60,000 in ransom money (later reduced to about $30,000) from the victim’s relatives and friends. The evidence at trial showed that this defendant punched, kicked, and threatened to kill the victim with a gun. When police officers arrived at the scene, they found the defendant guarding the handcuffed victim in a small back room of the building, and arrested him. The officers subsequently recovered the gun from a wastebasket where the victim indicated it had been hidden.

These facts and circumstances, when viewed together, convinced the experienced officers that the defendant was a participant in the kidnapping; hence, there was probable cause for his arrest (see, People v Oden, 36 NY2d 382 , 384; see also, People v Bigelow, 66 NY2d 417 , 423; People v Pegram, 203 AD2d 391 ; People v Fernandez, 185 AD2d 944 , 945; People v Javier, 175 AD2d 182 ). Moreover, the gun seized pursuant to the lawful arrest was properly used to prove the defendant’s guilt at trial (see, e.g., Wong Sun v United States, 371 US 471 ; People v Young, 55 NY2d 419 , 424, cert denied 459 US 848 ).

p. 706

During the trial, which lasted more than three weeks, a sworn juror became "unavailable for continued service” pursuant to CPL 270.35. The court conducted a reasonably thorough inquiry and recited on the record the facts and reasons for the dismissal of the juror, as required (see, People v Page, 72 NY2d 69 , 73; cf., People v Peregda, 164 AD2d 849 ; People v Paniaqua, 160 AD2d 334 ).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80 , 86).

The defendant’s remaining contentions are either unpreserved for appellate review (see, CPL 470.05 [2]) or without merit. Copertino, J. P., Pizzuto, Santucci and Joy, JJ., concur.

Cases cited

People v. Martinez 222 AD2d 702 N.Y. App. Div. 1995-12-29 p. 705
People v. Oden 36 NY2d 382 N.Y. 1975-04-03 at 384 p. 705
People v. Bigelow 66 NY2d 417 N.Y. 1985-11-26 at 423 p. 705
People v. Pegram 203 AD2d 391 N.Y. App. Div. 1994-04-11 p. 705
People v. Fernandez 185 AD2d 944 N.Y. App. Div. 1992-08-24 at 945 p. 705
People v. Javier 175 AD2d 182 N.Y. App. Div. 1991-07-08 p. 705
Wong Sun v. United States 371 US 471 SCOTUS 1963-01-14 p. 705
People v. Young 55 NY2d 419 N.Y. 1982-04-07 at 424 p. 705
People v. Page 72 NY2d 69 N.Y. 1988-07-07 at 73 p. 706
People v. Peregda 164 AD2d 849 N.Y. App. Div. 1990-08-30 p. 706
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 at 86 p. 706