155 A.D.2d 310 | N.Y. App. Div. | 1989
Lead Opinion
— Judgment of the Supreme Court, New York County (Harold J. Rothwax, J., at suppression hearings; Joan B. Carey, J., at trial and sentence), rendered April 26, 1988, convicting the defendant, after a jury trial, of robbery in the first degree and criminal possession of a weapon in the second and third degrees and sentencing him to concurrent indeterminate terms of imprisonment of 2 to 6 years, IVi to 4V2 years, and 1 to 3 years on each crime, respectively, unanimously modified, on the law and facts, to grant the motion to suppress the weapon, vacate the convictions of criminal possession of a weapon in the second and third degrees and reduce the conviction of robbery in the first degree to robbery in the third degree, and to remand for resentence thereon.
In pretrial motions all three defendants challenged the police stop of the vehicle, the seizure of a .38 caliber revolver from the rear passenger floor and the showup identification of the defendants by the complainants, all of which occurred within minutes of the crime.
The People’s case at a joint suppression hearing was as follows. On August 20, 1987, at approximately 1:25 a.m., Police Officers Hurt and Stevens were approached by two men who told the officers that they had just been robbed by three Hispanic men who had weapons and were in a tan car, headed northbound on Amsterdam Avenue from 170th Street. Officer Hurt broadcast the information over the radio although he did not recall whether he also communicated that the armed men had committed a robbery, a fact not reflected in the officers’ memo book.
The radio run was heard by Police Officers Daniel Spies and David Lynch who were in a marked patrol car on St. Nicholas Avenue near 176th Street. Officer Spies testified on direct examination that the radio transmittal was that an armed robbery had just occurred in the vicinity of West 170th Street and Amsterdam Avenue and that the police were looking for a small tan car occupied by two male Hispanics armed with guns. However, on cross-examination, Spies indicated that the radio communication stated only that there were two male Hispanics with guns in a small tan automobile coming from West 170th Street and Amsterdam Avenue and that no mention was made of a robbery.
Within a few minutes of hearing the transmittal, Officers Spies and Lynch saw a small tan automobile, occupied by three male Hispanics, stopped at a traffic light in a northbound lane of Amsterdam Avenue at 176th Street. Traffic on Amsterdam Avenue was very light and this was the only car stopped at the light. Spies followed the car until 179th Street. Neither he nor Lynch observed any "suspicious gestures” or
As Spies and Lynch handcuffed the defendants, Officer Hurt, the Ridleys and other police units arrived. The Ridleys rushed from their van, pointing to the defendants and yelling that the three defendants were the ones who had robbed and threatened them at gunpoint. Specifically, John Ridley identified Pena and Osorio as the persons who had possession of a gun. From the back seat and dashboard of the tan car, Lynch recovered the stolen equipment which the Ridleys also identified.
The suppression court denied the motions to suppress the gun, property and identifications. The court found that Officers Spies and Lynch, based upon the radio transmission and their own observations, were justified in stopping the defendants’ vehicle, and in conducting a frisk. He concluded that Officer Lynch acted appropriately in searching the car to determine whether or not the weapons mentioned in the radio run were in the vehicle, that the showup identification was reliable and that the radio equipment was properly seized.
The gun should be suppressed and the conviction modified pursuant to the recent decision of the Court of Appeals in People v Torres (74 NY2d 224 [1989]). While the radio transmittal, together with observations by Officers Lynch and Spies, justified the forcible stop, frisk and any questioning of Pena and his codefendants, there was, as a matter of law, no justification for conducting the further, more intrusive search of the vehicle which resulted in the discovery of the gun.
In People v Torres (supra), police acting upon an anonymous telephone tip that a specifically described suspect, wanted by police in connection with a homicide investigation, could be found at a barber shop, that he was carrying a gun in a shoulder bag and that he drove a black Eldorado automobile,
In this case, as in People v Torres (supra), the People articulate no legitimate law enforcement concerns which would justify this encroachment upon the defendants’ privacy. (See, People v Blasich, 73 NY2d 673 [1989] [having validly arrested occupants of a car, police may contemporaneously search the passenger compartment for weapons, related evidence, or to thwart a means of escape].)
Here, as in People v Torres (supra), the suspects had been patted down without incident and the police officers were therefore free to question them with no apparent risk of injury to themselves. Any residual fear that the officers may have had about the suspects’ ability to bolt and retrieve a gun from the car could have been eliminated by asking the suspects to move away from the vicinity of the car. (See, People v Torres, 74 NY2d, supra, at 230.)
The showup identification, occurring spontaneously within minutes of the robbery, was reliable. Moreover, the identifications were not the immediate consequence of the unlawful search, but rather were evidence obtained independently of the search. (People v Stith, 69 NY2d 313, 318 [1987].)
Whether the taking of the radio equipment was a continu
Thus, Pena’s conviction of robbery in the first degree (Penal Law § 160.15 [2]), which required proof of a loaded and operable weapon (Penal Law § 10.00 [12]), should be modified to a conviction of robbery in the third degree (Penal Law § 160.05), a lesser included offense, and the matter remanded for resentencing. (See, People v Almestica, 42 NY2d 222 [1977].) Concur —Milonas, Kassal, Smith and Rubin, JJ.
On May 16, 1989, this court affirmed Osorio’s conviction of criminal possession of a weapon in the third degree. (150 AD2d 225 [1st Dept 1989], lv granted 74 NY2d 745 [1989].)
Concurrence Opinion
concurs in a separate memorandum as follows: I concur on constraint of People v Torres (74 NY2d 224 [1989]).