Appeals (1) from a judgment of the County Court of Schenectady County (Eidens, J.), rendered August 1, 2000, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts), burglary in the first degree (three counts), robbery in the first degree (three counts), robbery in thе second degree and arson in the third degree, and (2) by permission, from an order of said court, entered February 8, 2001, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Ten months after a fire and the deaths of two elderly women at the house they shared in the City of Schenectady, Schenectady County, in December 1998, the investigation of those events led city police investigators, John Sims and Robert McHugh, to Mississippi in search of defendant. While there, and before the filing of аny accusatory instrument in New York, Sims and McHugh received a lead that resulted in defendant’s apprehension across the state line in Eutaw, Alabama. While the officers were in Alabama, but without their knowledge, a Mississippi police investigator, Joe Boswell, obtained a fugitive-from-justice warrant from a Mississippi judge based on Boswell’s mistaken belief that charges had been filed against defendant in New York. Although no Alabama police officer was present when Sims and McHugh initially detained defendant
Following a four-week jury trial, defendant was convicted of 10 of the 11 charges against him, and County Court later sentenced him to the maximum prison term on each charge, with those relating to separate crimes against each victim running consecutively.
We turn first to defendant’s contention that County Court erred in refusing to suppress his oral and written confessions because they were obtained in violation of the right tо counsel that allegedly attached upon issuance of the Mississippi fugitive-from-justice warrant, because there was no probable cause for his arrest, and because his arrest became illegal when Sims, McHugh and Isaac failed to comply with Alаbama law. Under New York law, which we apply because “procedural and evidentiary issues are governed by the law of the forum” (People v Benson,
In this case, defendant’s right to cоunsel did not attach prior to questioning by Sims and McHugh because no accusatory instrument had yet been filed in New York and the warrant issued in Mississippi based on a Mississippi officer’s mistaken belief did not constitute an accusatory instrument because it charged no сrime (see CPL 1.20 [1]; People v Gloskey, supra at 872). Nor did the mere issuance of the Mississippi fugitive-from-justice warrant constitute significant judicial activity. However, even if the issuance of the Mississippi warrant were considered to be sufficient judicial activity to trigger the right to counsel, defendant’s later wаiver of that right would still be effective (see People v Coleman, supra at 226).
Also unavailing is defendant’s alternate contention that his statements should have been suppressed because his warrant-less arrest was made without probable cause. Prior to defendant’s arrest, Sims and McHugh were aware that Elise Ottendorf, a friend of defendant, had averred that defendant admitted stealing jewelry from the victims’ residence and participating in their homicides. Connie Maier, who formerly lived with defendant, similarly averred that defendant had admitted participation in the homicides. Other evidence, including Umber’s statement naming defendant as a participant in the crimes, also implicated him. These sworn statements were more than sufficient to support this warrantless arrest (see People v Bailey,
Nor do we find merit in defendant’s argument that his arrest in Alabamа violated Alabama law. Generally, police officers from New York have no power to make arrests outside their geographic jurisdiction (cf. People v La Fontaine,
Since Sims and McHugh apprehended defendant outside their geographic jurisdiction in the absence of an Alabama police officer, the arrest here can only be justified when viewed as a citizen’s arrest. Such a warrantless arrest by a private person is expressly authorized under Alabama law (see Ala Rules of Grim Pro, rule 4.1 [b] [1] [i]). Once arrested, however, defendant had a statutory right to be delivered to a judge, magistrate or law enforcement officer without unnecessary delay (see Ala Rules of Grim Pro, rule 4.1 [b] [2]; Ala Code § 15-10-7 [e]). Isaac’s presence at the scene within 35 minutes after defendant’s arrest clearly satisfied this requirement. If defendant had been taken into Isaac’s custody, then Isaac would have been obligated to give him an appearance ticket, allow him to make bail or take him before a judge or magistrate within 48 hours (see Alа Rules of Grim Pro, rule 4.3 [a] [1]). Isaac’s testimony at the suppression hearing established that he asked defendant whether defendant wished to be detained by Isaac and questioned in Alabama, or to return to Mississippi in the custody of Sims and McHugh. At trial, defendant testified that he responded to Isaac’s question by saying that he was willing to go back to Mississippi with Sims and McHugh. Thus, the record clearly demonstrates that it was by defendant’s choice that he was not transferred into Isaac’s custody and that, as a result, Isaac was not required to allоw him bail or take him to a judge. Accordingly, we find that this citizen’s arrest did not violate Alabama law. In any event, even if defendant’s arrest were deemed to be illegal, the record does not support a finding that Sims, McHugh or Isaac knowingly or intentionally deprived defendant of a statutory right. Without more, such a violation of statutory requirements does not mandate suppression (see People v Sampson,
Next, we turn to defendant’s contention that County Court improperly instructed the jury regarding the voluntariness of his oral and written statements by omitting the so-called “truthfulnеss” portion of the charge suggested in the New York Criminal Jury Instructions (hereinafter CJI) (see 1 CJI[NY] 11.01, at 656). Since it was a key defense strategy to present
Pursuant to CPL 710.70 (3), a criminal defеndant is entitled “to relitigate the issue of the voluntariness of a statement before the jury” (People v Pulliam,
Next, we reject defendant’s challenge to the sufficiency and weight of the evidence. Defendant admitted, in a signed and detailed confession, that on the night in question he, Umber and Vincent O’Connor entered the victims’ home for the purpose of robbing them by using a ladder placed between a
As to the ladder theory of entry, the record plainly belies defendant’s claim of physical impossibility. Conveniently overlooking the undisрuted testimony of the evidence technician that the distance between the victims’ house and the neighboring building was a mere four feet, defendant rests his contention on the fact that the windows in the two buildings do not directly line up. However, as testified to at trial, the angle between the window in the neighboring building and one of the victim’s windows was not so great as to preclude the placement of a ladder between them. Significantly, defendant, in a drawing attached to his signed confession, drew the subject buildings and lines representing the lаdder used for access at an angle from one window to the other. Moreover, pictures submitted by the defense at trial confirm that the two buildings are in close proximity and that the offset between the two windows is far from insurmountable given the closeness. Accordingly, we conclude that the evidence was legally sufficient to establish a prima facie case for all 10 convictions (see People v Luck,
Crew III, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment and order are affirmed.
Notes
. The New York officers, however, were accompaniеd by a Mississippi police officer.
. With the automatic reduction provided in Penal Law § 70.30 (1) (e)(viii), the aggregate term of defendant’s imprisonment is 50 years to life.
. Other evidence at trial indicated that such an elevated entry was selected because the doors and the windows of the first floor of the victims’ house were securely locked and protected by an externally-monitored alarm system. Also, such access was facilitated by an alleged drug addict and fence who resided on the second floor of the neighboring building and who furnished the metal ladder used to bridge the narrow four-foot-wide alleyway between the two buildings.