31 A.D.2d 975 | N.Y. App. Div. | 1969
Judgment of the Supreme Court, Queens County, rendered April 28, 1967, modified, on the law and the facts, to the extent of reversing the conviction of grand larceny in the first degree and the sentence imposed thereon and dismissing that count of the indictment. As so modified, judgment affirmed. With respect to the charge of grand larceny in the first degree, there was insufficient evidence to support the jury’s conclusion that appellant took the complainant’s pocketbook or, at least, withheld it with intent to appropriate it to his own use. The requisite larcenous intent was not established by the mere fact that appellant did not immediately return the pocketbook after it was found in his truck and handed to him by the garage attendant, especially as appellant went to sleep shortly thereafter and was arrested only a few hours later. We find no error in the admission into evidence of certain statements made by appellant to police officers at his apartment. He was neither in custody nor under arrest at the time and the case was obviously still in the investigational stage, the police knowing only that appellant was the last person seen with the victim prior to the assault. The circumstances were not, therefore, analogous to those posited in Miranda v. Arizona (384 U. S. 436) and the officers were not required to warn him of his rights upon entering his apartment. We also find no error in the denial of appellant’s motion to suppress testimony as to the police officer’s observation of the interior of his truck and to suppress the items subsequently seized therefrom. Appellant voluntarily led the officer to the truck, which was parked in a public garage. It is well established that a police officer may observe anything in plain view in a public place without being guilty of having conducted an illegal search (People v. Hoffman, 24 A D 2d 497, 498; Davis v. United States, 327 ¡F. 2d 301, 305). After the officer observed what appeared to be blood and some of the victim’s personal belongings in the truck, appellant was arrested and taken to the station house. About a half hour later, the officers returned to the garage, searched the truck and seized various items therefrom without a search warrant. This seizure did not violate appellant’s rights, as the identical search and seizure could have been conducted at the time and place of his arrest (see People v. Mosehitta, 25 A D 2d 686). The mere fact the police had time to obtain a warrant after appellant was in custody is not