People v. Grimaldi

Estates. It was now approximately 5:30 a.m. Syvertsen then changed his destination to Elm Ridge Estates, a small subdivision with but one road leading to it, and notified the Kingston vehicle to join him there. On arrival, he observed lights in the first house on his left and saw fresh footprints leading directly to it. He turned on his flashing lights, waited for the other troop car, and then knocked on the door. When it was opened by one Doherty, Syvertsen looked inside and saw a stocky male, possibly of Italian origin, wearing a blue ski jacket and denim pants. He told this individual to come out on the porch. He did and, upon request, identified himself as Dominick Grimaldi. Syvertsen then frisked him for weapons and discovered a large quantity of cash and noticed what he believed to be blood stains on the left side of his jacket. He was then handcuffed, given Miranda warnings by another trooper, and taken into custody. Further investigation of the burglary disclosed Pisacano’s body, and a later seizure of defendant’s clothing and other items found on his person yielded evidence linking him to the homicide. However, at this juncture, we must first resolve the troublesome question of whether there was sufficient probable cause for Syvertsen to arrest defendant. We conclude that his arrest was lawful and thus justified the subsequent incidental search of his person. In determining whether probable cause existed, we are concerned with probabilities, not technicalities, and a police officer need not reject what he sees and believes (cf. People v Tolentino, 40 AD2d 596 ). Here an experienced officer spoke directly with-the complainant and learned that an attempted burglary had taken place. His subordinate relayed confirmation of the event and added that the missing subject had departed on foot. Inasmuch as the occurrence had taken place at an early morning hour in a remote area during a snowstorm, the unsolicited report of a named citizen stating he had given a ride to someone from that vicinity was of critical importance. When Sergeant Syvertsen observed footprints outside a lighted house at the Elm Ridge Estates shortly thereafter, and then came face to face with an individual matching the expanded description he had received, he possessed far more than suspicion. A reasonable and cautious police officer would act on the obvious factual and practical considerations of everyday life and form a genuine belief that the individual had committed a crime (cf. People v Reisman, 29 NY2d 278 ). The information he possessed did not rest entirely on the word of an anonymous tipster or on possible rumor (contrast People v Havelka, 45 NY2d 636 , 641; People v De Bour, 40 NY2d 210 , 222-223); it was based on his observations and unchallenged reports which were transmitted to him. Taking into account the exigencies of the attending circumstances, defendant’s warrantless arrest was valid. Meanwhile, following the identification of the remains of Pisacano and the other would-be burglar, Marmo, inquiries revealed that both had been associates of the defendant. At trial it was established that this triumvirate had recently arrived from the New York City area; had known each other previously; spent considerable time together; possessed large sums of money in the form of cash; were fond of guns and target shooting; and were also known to be users of drugs. On the evening of December 12, 1977, the three were present at the Petgen residence where there was a disagreement among them which culminated in threats suggesting violence with the use of knives. During the early morning hours of December 13, 1977, a number of shots were heard at a nearby apartment on Ford Hill Road. A tenant occupying the lower floor of that building, Edward Beck, recounted that he was awakened by what "sounded like a big gun and a little gun” and that Marmo, holding a gun, asked whether he had heard anything. Later that morning a check of the apart

ment revealed some disarray, "red splatters” on the walls and stairs, and a missing shower curtain. Bloodstains found on Grimaldi’s jacket and trousers matched Pisacano’s blood type, and the victim’s body was partially wrapped in a shower curtain when discovered. An autopsy revealed that Pisacano had been shot to death on December 12 or 13,1977 and that his head, hands and feet were severed from his body sometime after death. Significantly, .22 and .357 calibre bullets were recovered from his torso. Other relevant evidence, including defendant’s flight from the Petgen residence, was also introduced. In our view, although the evidence was primarily circumstantial, it was sufficient to establish defendant’s guilt beyond a reasonable doubt (cf. People v Rumble, 45 NY2d 879 ). We reject the arguments advanced by defendant directed at the conduct of the trial, the summation of the prosecutor, and the charge of the court. We do, however, address his contention regarding the introduction of portions of a telephone conversation with his father. On December 15, 1979, two State Police officers visited defendant at the Greene County Jail. After stating an attorney had been appointed to represent him but that he did not then want one as he had dismissed the counsel so assigned, defendant indicated that the only person he wanted to speak to was his father. The officers proceeded to question him about the pending murder charge and alternatives to such an accusation. Defendant repeated his desire to converse with his father and one of the officers made arrangements with the jailer to have a telephone placed in his cell. The officer then overheard defendant’s subsequent conversation and related it at trial. The jury may well have interpreted defendant’s remarks as an admission of guilt and, if so, the matter undoubtedly contributed to his conviction. Nevertheless, the police questioning elicited no incriminating statements and, in effect, nothing more transpired than if the jailer himself had overheard those comments (cf. Lanza v New York, 370 US 139 ). Judgment affirmed. Greenblott, J. P., Sweeney, Kane, Staley, Jr., and Casey, JJ., concur.