People v. Riddick

• Citation: 56 A.D.2d 937,392 N.Y.S.2d 848
• Parties: The PEOPLE, etc., Respondent, v. Obie RIDDICK, Appellant.
• Decision Date: 28 March 1977
• Court: New York Supreme Court Appellate Division

Page 848

392 N.Y.S.2d 848

56 A.D.2d 937

The PEOPLE, etc., Respondent, v. Obie RIDDICK, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

March 28, 1977.

William E. Hellerstein and William J. Gallagher, New York City (Jo Davis, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (George Freed, Kew Gardens, of counsel), for respondent.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered September 24, 1974, convicting him of criminal possession of a controlled substance in the sixth degree, upon his plea of guilty, and imposing sentence. The appeal also brings up for review an order of the same court, dated July 15, 1974, which denied defendant's motion to suppress physical evidence. Judgment and order affirmed. No opinion.

HOPKINS, Acting P.J., and DAMIANI and HAWKINS, JJ., concur.

COHALAN, J., dissents and votes to reverse the judgment and order, grant the motion to suppress, and dismiss the indictment, with the following memorandum:

In June, 1973 the victims of an armed robbery identified the defendant, through his photograph, as the perpetrator. Riddick was already a felon, having been convicted as one in 1970. There is some doubt as to whether the police knew of his whereabouts in June, 1973, but they admittedly knew his address in January, 1974. The arrest, effected without a warrant, was made on March 14, 1974. No attempt was made during the nine-month interval to present the case to a Grand Jury, or even to file an accusatory instrument. Nor was there any compelling reason to seek him out on March 14, 1974 without having first obtained an arrest warrant. In any event, the police officers verified the defendant's presence in his home by first sending in the defendant's parole officer. (Incidentally, defendant's sentence for the 1970 felony expired on February 12, 1974.) They then knocked at defendant's door. It was opened by the defendant's three-year-old child. There is no evidence that the defendant gave consent to the intrusion by the police (see People v. Whitehurst, 25 N.Y.2d 389, 306 N.Y.S.2d 673, 254 N.Y.S.2d 905; Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797); it would be farcical to suggest that the child gave the officers permission to enter the apartment (see People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575). In Gonzalez a consent was coerced from the defendants. Commenting on the fact situation, Chief Judge BREITEL wrote (p. 129, 383 N.Y.S.2d 215, 347 N.E.2d 575): 'Another factor to be considered in determining the voluntariness of an apparent consent is the background of the consenter (citations omitted). A consent to search by a case-hardened sophisticate in crime, calloused...