People v. Batista

• Decision Date: 15 October 1996
• Citation: 672 N.E.2d 581,649 N.Y.S.2d 356,88 N.Y.2d 650
• Parties: , 672 N.E.2d 581 The PEOPLE of the State of New York, Respondent, v. Hector BATISTA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 356

649 N.Y.S.2d 356

88 N.Y.2d 650, 672 N.E.2d 581

The PEOPLE of the State of New York, Respondent, v. Hector BATISTA, Appellant.

Court of Appeals of New York.

Oct. 15, 1996.

Culleton, Marinaccio & Foglia, Great Neck (Howard R. Birnbach, of counsel), for appellant.

Robert T. Johnson, Bronx County District Attorney (Elizabeth F. Bernhardt, Billie Manning and Allen H. Saperstein, of counsel), for respondent.

OPINION OF THE COURT

SMITH, Judge.

The issue on this appeal relates to the defendant's right to be free from an illegal search and seizure (U.S. Const. 4th, 14th Amends.; N.Y. Const., art. I, § 12). A police officer, after lawfully stopping a cab in which defendant was a passenger, had his suspicions aroused by his personal observation of defendant's movements and false response to an inquiry. At this point, the officer touched defendant's sweatshirt covering a bulletproof vest and, subsequently, discovered a weapon. Under the circumstances presented, we agree with both lower courts that the officer's action in touching defendant's sweatshirt was reasonable. The order of the Appellate Division should be affirmed.

At about 3:00 a.m., on February 20, 1992, two uniformed police officers, Officer Ronda and Officer Caban, were patrolling in a marked police car in the Bronx. Seeing a livery cab go through a red light on the Grand Concourse, the officers pulled the cab over. As the police car came to a stop, both officers noticed defendant--the sole passenger in the cab--shift from his seat behind the driver to the middle of the backseat. Defendant's movement drew the attention of both officers who thought it was "unusual."

Although the street was brightly lit, it was 3:00 a.m. and Officer Ronda carried a flashlight. While the cab driver was handing over his paperwork, Officer Ronda shone his light into the cab, to see the occupants' hands, paying "special attention" to defendant.

Officer Ronda then noticed that defendant was "wearing a large object protruding from his chest." Defendant wore a sweatshirt and an unbuttoned leather coat over what Officer Ronda believed to be a bulletproof vest, the outline of which was visible. Officer Ronda was familiar with the appearance of bulletproof vests because he wore one every day and had observed his fellow officers wearing them. As the officer later testified, he knew "what a vest looks like when it's sitting up on somebody's chest."

The rear windows of the cab were closed. Opening the cab's left rear door, Officer Ronda leaned his head in and asked, "What do you got on there? What do you got on there?" Defendant twice replied, "I don't have anything on." Defendant's evasive denials raised Officer Ronda's suspicions since he still believed the defendant was wearing a bulletproof vest. As the officer later testified on cross-examination:

"Q: It was only after touching the vest when he drops his hands that you then fear for your safety?

"A: Well, it was after I asked him the questions and he said--and he said that he wasn't wearing anything, that's when my suspicion was arisen."

Believing that defendant was "avoiding" him, Officer Ronda then touched defendant on the chest, where he believed the bulletproof vest to be, and felt a very heavy "Kevlar" vest. At this moment, defendant "tensed up" and threw his hands to his sides with his palms down on the seat. His attention drawn to where the defendant had suddenly pressed his hands, Officer Ronda looked down and saw a bulge in the right-hand pocket of appellant's leather coat which lay flush on the seat. At that point, fearing for his safety, the officer grabbed the pocket, felt a gun, and called to his partner for assistance.

Officer Caban grabbed defendant's arm while Officer Ronda removed a loaded, nickel-plated .380 caliber semiautomatic handgun from appellant's coat pocket. It was later discovered that this same gun was the weapon used to kill Mark Santiago, a 16-year-old male, about three weeks earlier on February 1, 1992. At that time, Officers Ronda and Caban were unaware that defendant had previously been identified by two witnesses in connection with an investigation into the murder of Mark Santiago.

Defendant was convicted, after a jury trial, of murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. On appeal, the Appellate Division unanimously affirmed the conviction and held that Officer Ronda's touching of the sweatshirt was "justified by the taxi having run a red light, defendant's movements in the back seat, the officer's observation that defendant appeared to be wearing a bulletproof vest, and defendant's refusal to answer the officer's question as to what he was wearing" (216 A.D.2d 174, 175, 629 N.Y.S.2d 209). The Appellate Division also stated that defendant's hand movements, throwing "his hands to his sides in an attempt to conceal a bulge in his coat," gave Officer Ronda "a reasonable concern for his safety," and thus justified the subsequent search of the defendant's pocket (216 A.D.2d, at 175, 629 N.Y.S.2d 209).

The touchstone of any analysis of a governmental invasion of a citizen's person under the "Fourth Amendment and the constitutional analogue of New York State is reasonableness." (People v. Chestnut, 51 N.Y.2d 14, 22, n. 7, 431 N.Y.S.2d 485, 409 N.E.2d 958; People v. Moore, 32 N.Y.2d 67, 69, 343 N.Y.S.2d 107, 295 N.E.2d 780.) A determination of reasonableness turns upon the facts of each case (Chestnut, 51 N.Y.2d, at 22, 431 N.Y.S.2d 485, 409 N.E.2d 958). Since the livery cab had gone through a red light, there is no question that the stop was appropriate (People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39). Under the facts here, the frisk of the defendant was also appropriate.

A "frisk," defined as a "pat-down" of the outer clothing of a suspect, may be justified on less than what would be required for an arrest. (People v. Rivera, 14 N.Y.2d 441, 446, 252 N.Y.S.2d 458, 201 N.E.2d 32; People v. Moore, 32 N.Y.2d 67, 70, 343 N.Y.S.2d 107, 295 N.E.2d 780, supra.) As this Court explained in...