People v. Batista

• Decision Date: 26 June 1979
• Citation: 68 A.D.2d 515,417 N.Y.S.2d 724
• Parties: The PEOPLE of the State of New York, Appellant, v. Emanuel BATISTA and Frances Branciforte, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 724

417 N.Y.S.2d 724

68 A.D.2d 515

The PEOPLE of the State of New York, Appellant, v. Emanuel BATISTA and Frances Branciforte, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

June 26, 1979.

Craig P. Murphy, New York City (Jerrold L. Neugarten, New York City, with him, on briefs; Robert M. Morgenthau, Dist. Atty., New York City), of counsel, for appellant.

Richard Steel, New York City, for defendant-respondent Frances Branciforte.

Demostenes Roque, New York City, for defendant-respondent Emanuel Batista.

Before MURPHY, P. J., and SULLIVAN, BLOOM, LANE and LUPIANO, JJ.

MURPHY, Presiding Justice:

The facts are fairly stated in the dissenting opinion and need not be repeated in the majority opinion.

A person, otherwise acting innocently, may not be arrested merely because he was in the company of another person who had engaged in criminal activity. (People v. Griffith, 63 A.D.2d 138, 142, 406 N.Y.S.2d 777, 779; People v. Trapier, 47 A.D.2d 481, 483, 367 N.Y.S.2d 276, 277). However, under certain circumstances, a person's presence at a crime scene might furnish a trained policeman with probable cause to arrest him (People v. Martin, 32 N.Y.2d 123, 125, 343 N.Y.S.2d 343, 345, 296 N.E.2d 245, 246). The primary question presented upon this appeal is whether the police officers were justified in arresting the respondents, Emanuel Batista and Frances Branciforte, on the basis of their prior association with Francisco Batista.

As the dissenting Justice observes, the act of buying a holster is lawful. Therefore, that act, in and of itself, can not serve as a predicate for the common law right to inquire or for the higher degrees of police intrusion set forth in People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 384, 352 N.E.2d 562, 571. Since the police officers did not approach the respondents outside the novelty store to request information as to the proposed use of the holsters, it is unnecessary to explore whether such an information inquiry would have been proper as a minimal intrusion under DeBour (ibid).

The police officers began a surveillance of the three individuals when they exited the novelty shop. In that high-crime area, the surveillance was reasonably undertaken by the police for there was a possibility that the holsters were bought to encase illegal firearms. Likewise, during the course of the surveillance, there is no indication that the officers unlawfully interfered with the freedom of movement enjoyed by the three individuals.

Further, the plainclothes officers never announced their identity. The three individuals sensing that they were being followed, took a circuitous walk about the Times Square area. From time to time, they glanced over their shoulders at the trailing officers. The three individuals had no reason to know whether they were being followed by officers or felons. In these circumstances, the officers would not have been justified had they stopped the three individuals on the ground of reasonable suspicion (People v. Towers, 49 A.D.2d 839, 373 N.Y.S.2d 593). Consequently before Francisco Batista drew his gun and was arrested, the police did not have probable cause to arrest the respondents or to search them under CPL § 140.50, subd. 3.

Thus, the more narrow issue is whether the police response, after Francisco had been arrested, was reasonable with regard to the respondents. Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment (People v. Cantor, 36 N.Y.2d 106, 111, 365 N.Y.S.2d 509, 514, 324 N.E.2d 872, 876). When Officer De Stacio saw the gun in Francisco's hand, she grabbed the respondents by the shoulders and held them. In essence, Officer De Stacio placed the respondents under arrest (cf. People v. Bronk, 66 Misc.2d 932, 323 N.Y.S.2d 134, aff'd 31 N.Y.2d 995, 341 N.Y.S.2d 450, 293 N.E.2d 826). To that point in time, the respondents had not engaged in any overt criminal activity. Hence, there was no probable cause for the arrest. (People v. Martin, supra, at 124-125, 343 N.Y.S.2d at 344-345, 296 N.E.2d at 245-246). Since the arrest was unlawful, the motion to suppress should have been granted (People v. Cantor, supra, at 111, 365 N.Y.S.2d at 514, 324 N.E.2d at 876).

For purposes of discussion, it will be assumed that the police were justified in frisking the respondents and in inspecting the canvas bag under the authority of CPL § 140.50. (People v. Sterling, 63 A.D.2d 210, 406 N.Y.S.2d 478; People v. De Jesus, 55 A.D.2d 196, 389 N.Y.S.2d 881; but see, People v. Sanchez, 38 N.Y.2d 72, 378 N.Y.S.2d 346, 340 N.E.2d 718). As is mentioned in the dissenting opinion, the officers did not frisk the respondents or inspect the canvas bag on the arrest site. Instead, the officers physically seized, unlawfully arrested and placed the respondents in an unmarked police vehicle. CPL § 140.50 does not provide the police with the authority to perform a frisk at another time and another place. Furthermore, while there is some indication in the record that other members of the public were present at or near the arrest site, there is no testimony in the record that a hostile populace required that the frisk be effected elsewhere.

For the foregoing reasons, the order of the Supreme Court, New York County, entered June 12, 1978, granting respondents' motions to suppress, should be affirmed.

Order, Supreme Court, New York County, entered on June 12, 1978, affirmed.

All concur except LUPIANO, J., who dissents in an opinion.

LUPIANO, Justice (dissenting):

The People of the State of New York appeal from an order of the Supreme Court, New York County, entered on June 12, 1978, which suppressed a .38 caliber revolver and six rounds of ammunition seized from defendants Emanuel Batista and Frances Branciforte at the time of their arrest, ¹ and statements they later made to the arresting officers. Defendants were indicted for Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02).

On March 11, 1978, at approximately 9:40 p. m., in a high crime area, detectives Juan Sanchez, John Shaw, Jeremiah O'Shaughnessy and police officer Maureen De Stacio (all in plainclothes), while outside a novelty shop on 42nd Street between 7th and 8th Avenues, observed defendant Emanuel Batista and his brother Francisco Batista inside the novelty shop Trying on, i. e., adjusting shoulder holsters on each other, these articles being among the items for sale at these premises. Defendant Emanuel Batista was observed to possess a brown canvas bag and to be also accompanied by his girlfriend, defendant Frances Branciforte. The Batistas purchased the two shoulder holsters which were placed in a paper bag and given to them. The trio then left the store and headed east on 42nd Street toward Seventh Avenue. At a distance of about ten to twenty feet, the police followed. As the trio approached Seventh Avenue, defendant Emanuel Batista passed the canvas bag he was carrying to defendant Frances Branciforte.

At the intersection of 42nd Street and Seventh Avenue, the trio turned south on Seventh Avenue and walked to 40th Street, only to turn around and walk north on Seventh Avenue. During this period, the trio were constantly looking over their shoulders in the general direction of the police (in plainclothes) who were following in order to keep the trio under observation. In proceeding north on Seventh Avenue, defendant Emanuel's brother, Francisco, began to walk ahead of his two companions, so that by the time he reached the intersection of Seventh Avenue and 44th Street, he was approximately twenty feet ahead.

The detectives endeavored to keep up with Francisco, while Officer De Stacio remained in position behind, that is, trailing, the defendants herein. There were a number of other pedestrians at this time. Abruptly, Francisco, on attaining the 44th Street intersection, turned around and walked south, I. e., he reversed his direction until he was standing face-to-face with Detective Sanchez. "He looked into (Detective Sanchez's) eyes and he started to run north." After running several feet, he pulled a revolver from his waistband and pointed it at Detective Shaw, who shouted a warning to his fellow officers: "He's got a gun." Detective Sanchez struck Francisco with the butt of his gun and the latter dropped the weapon on the ground, where it was retrieved by Detective Shaw.

Concomitant with these circumstances, Officer DeStacio, observing the defendants looking around, and fearful that they would endeavor to flee, grabbed the defendants by the shoulders and told them that she had a gun in their backs, although, in fact, she had not drawn her revolver. The defendants did not resist.

In aiding the placement of the trio in a Police Department vehicle, Officer DeStacio took the canvas bag from defendant Branciforte. While the vehicle was proceeding toward the Midtown South Police Station, Officer DeStacio started to open the canvas bag. Defendant Branciforte told her, "the only thing that belongs to me in there is my purse." DeStacio discovered a .38 caliber revolver loaded with six rounds of ammunition in the bag which she handed to Detective Sanchez. At that point, unsolicited, defendant Batista declared that the weapon was not his. At the police station, the trio were informed of their Miranda rights. As defendant Branciforte was searched, she kept telling Officer DeStacio: "I don't know why they are arresting me. The gun isn't mine. I was just carrying it in the bag." She also told the officer that she was holding it for defendant Emanuel Batista. Further, at one point while not being explicit as to whom she was referring, Branciforte declared: "I wouldn't get charged with this because he is going to take the weight."

While Detective Sanchez was processing defendant Emanuel...