People v. Cook

Judgment affirmed. Memorandum: The suppression court properly concluded that Officer Dray-ton, dispatched at night to investigate a reported burglary, had probable cause to arrest defendant. On arrival at the scene the officer observed the glow of a light moving inside the darkened commercial building, and defendant was apprehended shortly thereafter as he stepped off the enclosed porch. We reject defendant’s argument that it was necessary for the prosecution under the rule stated in People v Havelka (45 NY2d 636) and People v Lypka (36 NY2d 210) to produce the officer who sent the transmission for the purpose of verifying the fact that Officer Drayton had been dispatched to the scene. Officer Drayton’s testimony concerning the order from headquarters was accepted as relevant only as providing an explanation of why he went to 13-15 Oregon Street. Its purpose was to establish the fact that the dispatch order had been given and received and not to prove the truth of anything asserted in the transmission. The testimony, therefore, was not hearsay (see, Richardson, Evidence §§ 200, 203, 204 [10th ed]; cf. People v Havelka, supra, p 641; People v Lypka, supra, pp 213, 214). Proof from the dispatcher that the order had been transmitted would be cumulative, and to require it here and in similar cases would impose a needless and time-consuming burden on the prosecution. Even if we were to treat the dispatch order as hearsay, the testimony of the dispatching officer would not be required at the suppression hearing. Officer Drayton observed a light moving inside the building when he arrived at the scene, which confirmed the report of a burglary. The independent observation of the receiving officer confirming the report is sufficient to sustain the action taken (see, People v Havelka, supra, p 641; People v Lypka, supra, p 213, n 2; People v Bowdoin, 89 AD2d 986, 987).

We have examined defendant’s other contentions and find no basis for reversal.

All concur, except Green, J., who dissents and votes to reverse and grant defendant’s motion to suppress in the following memorandum.