Carlos B., Matter of
| Decision Date | 19 April 1976 |
| Citation | 86 Misc.2d 160,382 N.Y.S.2d 655 |
| Parties | In the Matter of CARLOS B. et al., persons under eighteen years of age alleged to be juyenile delinquents, Respondents. * Family Court, New York City, New York County |
| Court | New York City Court |
The evidence at the juvenile delinquency trial of the 15-year-old respondents showed that one Dr. Gardiner, walking home from a restaurant dinner to his apartment on East 43rd Street in Manhattan at about 1:30 a.m., was assaulted by a group of seven youths. During the assault his pants were ripped down the back and his wallet was taken from one pants pocket as well as paper currency from another; his watch was removed from his wrist; and after he was knocked to the ground he received a kick in the cheek that caused permanent eye impairment. The major question of law raised by the respondents is whether the victim's identification of them is inadmissible in evidence under the constitutional guarantees of due process of law and against unreasonable searches and seizures. The answer to this question depends on whether evidence should be nullified by a policeman's mistake in determining the precise moment when his authority to stop respondents ripened into authority to arrest them.
Prompt Identification of Respondents.
Dr. Gardiner identified respondents on the street within fifteen minutes of the crime, the police having stopped and detained them five blocks from its scene. Unquestionably, a prompt identification is proper despite its 'show-up' character. People v. Morales, 37 N.Y.2d 262, 272, 372 N.Y.S.2d 25, 29, 333 N.E.2d 339, 344; People v. Blake, 35 N.Y.2d 331, 336--7, 361 N.Y.S.2d 881, 888, 320 N.E.2d 625, 630; People v. Rahming, 26 N.Y.2d 411, 416, 311 N.Y.S.2d 292, 296, 259 N.E.2d 727, 730; People v. Logan, 25 N.Y.2d 184, 188, 303 N.Y.S.2d 353, 355, 250 N.E.2d 454, 455: 'The prompt identification . . . shortly after the criminal event accorded with desirable police practice;' Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 1883, 32 L.Ed.2d 411, 418; Russell v. United States, 133 U.S.App.D.C. 77, 81, 408 F.2d 1280, 1284, cert. den. 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245; Arizona v. Gastelo, 111 Ariz. 459, 532 P.2d 521, 523 (1975). Respondents contend, however, that the police acted illegally in stopping respondents; that this illegality taints the identification because it could not have occurred but for their restraint by the police; and that the identification therefore cannot be used against them despite its admissibility under CPL 60.30. Basis for Street Restraint of Respondents.
Police Officer Ward on Anti-Crime Patrol in an unmarked police car received a police radio call that seven black youths fled towards Second Avenue from the scene of an assault and robbery on East 43rd Street. Within five minutes of the call he saw a group of black youths (thereafter found to number eight) on Second Avenue four blocks from the scene of the crime; calling for reinforcement and following them for a block, he then ordered them to stop and stand against a building wall. Within three minutes Dr. Gardiner, the victim, arrived there with other policemen, and identified respondents as three of his assailants. Respondents were then taken to the police station.
Officer Ward could reasonably have calculated from the elapsed time and the distance from the scene of the crime that the group he saw was likely to be its perpetrators. (See People v. Wilson, 16 A.D.2d 207, 210, 229 N.Y.S.2d 685, 688; Gastelo, cited Supra, 532 P.2d at p. 522, as to importance of time-distance factor.) Further, Officer Ward testified that during his patrol in and near the area in the preceding hours, he had not noticed any other group on the street of more than two or three people; and it is common knowledge to anyone acquainted with the area of the crime that a group of youths on the street in that vicinity at 1:30 a.m. would be most unusual.
These facts were sufficient to establish the reasonable suspicion necessary for an investigative stop. See Terry v. Ohio, 392 U.S. 1, 22, 23, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906; People v. Rivera, 14 N.Y.2d 441, 445, 252 N.Y.S.2d 458, 461, 201 N.E.2d 32, 34; United States v. Burgarin-Cases, 484 F.2d 853, 855 (C.A.9, 1973) cert. den. 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762: a stop is justified on 'founded suspicion'; United States v. Ward, 488 F.2d 162 (C.A.9, 1973). Respondents argue that even if the initial police action be viewed as stop, despite their argument that it constituted an arrest (see below), it was illegal because Officer Ward did not use it for the purpose of questioning respondents in accordance with the 'stop-and-frisk' law (CPL 140.50). However, the legal and constitutional power of the police extends to a stop on reasonable suspicion for other legitimate police purposes. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612: 'A brief stop of a suspicious individual, in order . . . to maintain the status quo momentarily . . . may be most reasonable in the light of the facts known to the officer at the time'; People v. Rosemond, 26 N.Y.2d 101, 103--4, 308 N.Y.S.2d 836, 838, 257 N.E.2d 23, 25; People v. Green, 80 Misc.2d 626, 631, 363 N.Y.S.2d 753, 758, as to 'the right to detain individuals short of arresting them' briefly for a reasonable police purpose; People v. Butterly, 25 N.Y.2d 159, 162, 303 N.Y.S.2d 57, 60, 250 N.E.2d 340, 342; Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900. Officer Ward could have reasonably inferred from the police radio calls and the time-distance factor that the victim would shortly arrive with assisting police at the location of the stop for the purpose of viewing the suspects. Prompt identification was undoubtedly a proper police purpose (see above), justifying a brief detention; 'for the police to have done less would have been misfeasance.' See People v. Singleteary, 35 N.Y.2d 528, 531, 364 N.Y.S.2d 435, 438, 324 N.E.2d 103, 105.
Stop or Illegal Arrest.
Respondents' major argument is that Officer Ward arrested them at their initial encounter rather than merely making an investigative street stop, and that such arrest was illegal. Since the circumstances at that time present only a borderline case of probable cause for an arrest, this opinion will assume, in respondents' favor, that an arrest was justified only after the victim had identified respondents (the identifications conceded furnished probable cause). Officer Ward who supplied the only evidence as to the time of arrest, first testified that he arrested respondents when he stopped them; he also testified that he then 'intended' to arrest them but did not recall when, if ever, he told them they were under arrest.
'The question of precisely when an arrest occurred is one of fact (Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917).' People v. Butterly, 25 N.Y.2d 159, 162, 303 N.Y.S.2d 57, 60, 250 N.E.2d 340, 342. The legality of a police act cannot be judged, either in approving or disapproving it, by the Name the police gave or intended to give to it.
In People v. Cantor, 36 N.Y.2d 106, 112, 365 N.Y.S.2d 509, 515, 324 N.E.2d 872, 876, the Court 'eschewed the semantic trap of labeling the police action,' choosing instead to determine whether the Action was reasonable under the circumstances. People v. Martinez, 37 N.Y.2d 662, 668--670, 376 N.Y.S.2d 469, 474, 339 N.E.2d 162, 166, in which a gun observed as a result of an illegal stop was held to constitute probable cause for an arrest, is also instructive in that it focused on the factual basis for the police action and its reasonableness (at p. 670, ...
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