61 A.D.2d 299, People v. Dunaway

Citation:61 A.D.2d 299, 402 N.Y.S.2d 490
Party Name:People v. Dunaway
Case Date:March 01, 1978
Court:New York Supreme Court Appelate Division, Fourth Department
 
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Page 299

61 A.D.2d 299

402 N.Y.S.2d 490

PEOPLE of the State of New York, Appellant,

v.

Irving Jerome DUNAWAY, Respondent.

Supreme Court of New York, Fourth Department

March 1, 1978.

[402 N.Y.S.2d 491] Lawrence T. Kurlander, Dist. Atty., Rochester, for appellant (Melvin Bressler, Rochester, of counsel).

Edward J. Nowak, Rochester, for respondent (James M. Byrnes, Rochester, of counsel).

Before MARSH, P. J., and MOULE, CARDAMONE, DENMAN and WITMER, JJ.

MOULE, Justice.

This is an appeal by the People from an order granting defendant's motion to suppress certain inculpatory statements and sketches made by him in which he admits his involvement in the murder of a pizza shop proprietor.

On March 26, 1971, two men entered a pizza shop in Rochester and, in the course of an attempted robbery, one of them shot and killed the proprietor. Four months later, on August 11, 1971, three police officers went to defendant's home to question him about his participation in the robbery. According to the police testimony, defendant was asked to come downtown to talk and did so voluntarily. Defendant was taken to police headquarters where he was placed in an interrogation room and given his Miranda warnings. He then waived his right to counsel and consented to talk to the detectives. He made an incriminating statement, which was repeated for a stenographer. He also made two sketches useful to the prosecution. The following day defendant asked to see one of the police officers and made a second more complete statement.

Defendant was indicted on two counts of murder and one count of attempted robbery. Following a hearing on defendant's motion to suppress his statements and sketches, the motion was denied. After a jury trial defendant was convicted of felony murder and attempted robbery and sentenced to a term of 25 years to life on the murder count and a maximum term of 15 years on the attempted robbery count, the sentences to run concurrently. Defendant appealed his conviction and this court and the Court of Appeals affirmed without opinion (42 A.D.2d 689, 346 N.Y.S.2d 779; 35 N.Y.2d 741, 361 N.Y.S.2d 912, 320 N.E.2d 646). The Supreme Court of the United States granted certiorari and thereafter vacated the judgment and remanded the case to the Court of Appeals for further consideration in light of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (Dunaway v. State of New York, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 705). The Court of Appeals remitted the case to the Monroe County Court for a factual hearing on whether defendant was detained and, if so, whether there was probable cause for the detention and, if there was a detention and probable cause was not found, whether the making of the confessions and the accompanying sketches was rendered infirm by the illegal arrest (People v. Dunaway, 38 N.Y.2d 812, 813-14, 382 N.Y.S.2d 40, 41, 345 [402 N.Y.S.2d 492] N.E.2d 583, 584). It is from the decision and order of the County Court granting defendant's motion to suppress his statements and sketches that the People appeal.

We believe that this case is controlled by the recent decision of the Court of Appeals in People v. Morales, 42 N.Y.2d 129, 397 N.Y.S.2d 587, 366 N.E.2d 248 in which the Court rearticulated the views expressed in its earlier Morales decision (22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307) that "(l)aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual's Fifth and Sixth Amendment rights" (42 N.Y.2d at 135, 397 N.Y.S.2d at 590, 366 N.E.2d at 251). " '(A) policeman's right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter' " (42 N.Y.2d at 137, 397 N.Y.S.2d at 591, 366 N.E.2d at 252, quoting from People v. DeBour, 40 N.Y.2d 210, 219, 386 N.Y.S.2d 375, 382, 352 N.E.2d 562, 569).

Here, based upon information supplied to the police by an informant, who had picked out a picture of defendant from a file of photographs, the police questioned an individual who was serving time in jail and who informed them that defendant and one Adams had participated in the robbing and shooting of the pizza shop proprietor. Although this hearsay information did not constitute probable cause to arrest defendant, in our opinion, it certainly raised a "reasonable suspicion" in the minds of the police so as to warrant their detention of defendant for questioning under Morales.

Furthermore, the record, which includes the transcripts of both suppression...

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