People v. Allah
| Citation | 444 N.Y.S.2d 412,111 Misc.2d 516 |
| Parties | The PEOPLE of the State of New York v. Ibn ALLAH, Defendant. |
| Decision Date | 19 November 1981 |
| Court | United States State Supreme Court (New York) |
Robert M. Morgenthau, Dist. Atty., New York County (John Hogan, New York City, of counsel), for the People.
Jeffrey Rubin, New York City, for defendant.
The defendant was indicted for the crime of Criminal Possession of a Weapon in the Third Degree and Escape in the Second Degree. A hearing on the defendant's motion to suppress the weapon (a pistol) seized from him was conducted by this court (Preminger, J.) on March 9 and 12, 1979. The motion was granted and the weapon charge subsequently dropped by the People. The defendant has brought the instant motion to dismiss the escape charge which is founded on defendant's alleged escape from police custody without force after he had been arrested for possession of the weapon.
Defendant contends that on the basis of Justice Preminger's findings, the People cannot show that at the time he "escaped," he was in "custody" as required by the escape statutes (Penal Law §§ 205.10; 205.00 "Custody" is defined by Penal Law § 205.00(2) as "restraint by a public servant pursuant to an authorized arrest." The key issue, and one apparently of first impression in this state, is whether a defendant is considered restrained "pursuant to an authorized arrest" when his arrest is later determined to be without probable cause.
Justice Preminger's findings can be briefly summarized. Two police officers decided to question three men they saw standing in the doorway of a partially abandoned apartment building late at night. Upon entering the building, they saw the defendant as well as the three other men. The officers directed all four to face the wall. After defendant turned to face the wall, the officers saw a pistol in his hand. The officers then "seized the pistol and arrested the defendant." Hearing Tr., p. 35. Justice Preminger found that the officers did not have "the right to stop and frisk" when they ordered the defendant to face the wall; the weapon obtained by reason of this stop and detention, she ordered suppressed. Id. at 36.
Justice Preminger's finding that the stop of the defendant was unlawful * is binding upon this court. Although the doctrine of collateral estoppel applies in criminal cases, it is not applicable here because there has been no final judgment. People v. Plevy, 52 N.Y.2d 58, 436 N.Y.S.2d 224, 417 N.E.2d 518 (1980); People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980); Compare People v. Cunningham, 62 Misc.2d 515, 308 N.Y.S.2d 990 (Sup.Ct. Kings Co. 1970) (doctrine applicable for separate indictments, judgment on one). However, Justice Preminger made a finding concerning the specific indictment and incident now before this court. Since it is considered a waste of judicial resources to address the same issue again, after both parties have been heard previously, the doctrine of "law of the case" prevents this court from hearing argument de novo. See Matter of McGrath v. Gold, 36 N.Y.2d 406, 413, 369 N.Y.S.2d 62, 330 N.E.2d 35 (1975).
The People argue that because Justice Preminger found only that the stop of the defendant and seizure of the gun were illegal, his subsequent arrest after the police saw the gun was valid and "authorized." They state that "upon seeing the gun and seizing it, the police had reasonable cause to believe that defendant had committed an offense in their presence and could therefore legally 'arrest' him." Peo. Aff. p. 3. The People assume that since the officers were obligated to arrest the defendant once they observed evidence of the commission of a crime, the arrest was therefore lawful.
The People overlook the principle that probable cause for an arrest cannot be founded solely on evidence procured by an illegal search. In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, reh. denied 394 U.S. 939, 89 S.Ct. 1177, 22 L.Ed.2d 475 (1969), the Supreme Court, relying on Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), stated that conversations overheard by means of illegal eavesdropping could not provide a basis for a legal arrest. Accord, United States v. Palazzo, 488 F.2d 942 (5th Cir. 1974) (); People v. Sciacca, 78 A.D.2d 545, 432 N.Y.S.2d 90 (2d Dept. 1980) (). Whatever is observed during an illegal stop cannot then provide probable cause for a subsequent arrest. United States v. Jones, 619 F.2d 494, 498 (5th Cir. 1980); United States v. Coleman, 450 F.Supp. 433, 438 (E.D.Mich.1978). In the case at bar, the illegal stop of the defendant provided the only reason to suspect him of criminally possessing a weapon. His subsequent arrest on that charge was therefore without probable cause and illegal.
The issue becomes whether an arrest, although made without probable cause, is nevertheless an "authorized arrest" and thus a predicate for an escape charge. Only two cases in New York have addressed the question of what constitutes an "authorized" arrest. In People v. Tedesche, 3 A.D.2d 220, 159 N.Y.S.2d 486 (1st Dept 1957), the Appellate Division of this Department found that the defendant was not in "lawful custody" because the arresting officer had acted contrary to the law at that time in arresting him for a misdemeanor not committed in his presence. See N.Y. Crim. Proc. § 177 (repealed, 1970). In People v. Hebmann, 54 Misc.2d 666, 283 N.Y.S.2d 179 (Suffolk County Ct. 1967), where a court without the power to do so issued a warrant for the arrest of the defendant, the reviewing court ruled that the defendant was not in "custody" when arrested pursuant to such a warrant.
The People argue that the holdings of these two cases should not be extended to a case like ours where the arrest was not statutorily prohibited. They note that no New York court has so held. But, cases in other jurisdictions have held that where there is no probable cause to arrest there can be no prosecution for escape. United States v. McKim, 509 F.2d 769, reh. denied 517 F.2d 480 (5th Cir. 1975) (Wisdom, J.); State v. Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980); confirmed and modified 207 Neb. 663, 300 N.W.2d 194 (1981); State v. Dickson, 205 Neb. 476, 288 N.W.2d 48 (1980); see also, People v. Paul, 147 Cal.App.2d 609, 305 P.2d 996 (Dist.Ct.App.1957); Sugarman v. State, 173 Md. 52, 195 A. 324 (1937). The facts in McKim, supra, are similar to those here. McKim had been the victim of an illegal stop and search that had produced 60 pounds of marijuana. He was arrested on the spot, but prior to his arraignment before a magistrate he absconded. The court found that an arrest pursuant to an illegal stop was without probable cause and therefore not "lawful" for the purposes of the escape statute (18...
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People v. Stephens
...this issue (see People v. Plevy, 67 A.D.2d 591, 416 N.Y.S.2d 41, affd 52 N.Y.2d 58, 436 N.Y.S.2d 224, 417 N.E.2d 518; People v. Allah, 111 Misc.2d 516, 444 N.Y.S.2d 412). There is another aspect to this case which troubles me. If the perjury indictment is allowed to stand, it would have a c......