People v. Behlin

Decision Date06 July 1981
Citation83 A.D.2d 557,440 N.Y.S.2d 948
PartiesThe PEOPLE, etc. Appellant, v. Jack BEHLIN, Respondent.
CourtNew York Supreme Court — Appellate Division

Eugene Gold, Dist. Atty., Brooklyn (Norman S. Heller, Brooklyn, of counsel), for appellant.

A. Irene Elliott, Brooklyn, for respondent.

Before LAZER, J. P., and MANGANO, COHALAN, MARGETT and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Kings County, entered February 20, 1980, as granted that part of defendant's motion which was to suppress certain physical evidence.

Order reversed in so far as appealed from, on the law and the facts, motion denied as to the physical evidence and case remanded to Criminal Term for further proceedings consistent herewith.

Indicted for criminal possession of a weapon (i.e., a pistol) in the third degree (Penal law § 265.02), defendant moved to suppress the pistol as illegally obtained by the police.

At the hearing of this motion, the People produced William Martin, the police officer who had seized defendant's pistol. Martin testified that while with his partner on radio motor patrol in the early morning hours of September 27, 1978 he had observed a vehicle traveling in the wrong direction on a one-way street. He stated that he and his partner had stopped the vehicle and approached it on foot, and that while his partner spoke with the driver, who had gotten out of the vehicle, he (Martin) had observed a bulge in the driver's right hand pocket. Martin further testified that the driver had been wearing tight pants, and that the bulge had appeared to reveal the imprint of a gun, which he then seized, after frisking the driver. Finally Martin identified the defendant as the driver of the vehicle and the person from whom he had taken the gun.

Defendant, the only other witness to testify at the hearing, denied almost entirely the police officer's account. He stated that, after he had been stopped for what the police charged was a traffic violation he had been held at gunpoint by one officer while the other searched his vehicle and discovered the gun in question under the driver's side of the front seat.

Criminal Term rendered an oral decision after the hearing. In reviewing the testimony it observed that defendant's account was as credible as that of the police officer. Nevertheless, it stated that, even if the officer's testimony were credited as true, it failed to prove the existence of probable cause to search the defendant.

We reverse.

Initially, it is our determination that Police Officer Martin took the gun in question from defendant's pocket, after having observed a bulge that revealed the imprint of a gun and after having frisked the defendant. We also find that the search and seizure took place while defendant was stopped for a traffic violation, which the police had observed, and that this entire incident occurred in the early morning hours of September 27, 1978.

On the issue of the search and seizure, we note that CPL 140.50 (subd. 3) predicates a search for weapons on a police officer's reasonable suspicion that the individual to be searched is presently dangerous. (People v. Moore, 32 N.Y.2d 67, 70, 343 N.Y.S.2d 107, 295 N.E.2d 780; see Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917.) Thus, on the particular facts of this case, we must decide whether Police Officer Martin could have reasonably suspected that he and his partner were in danger of physical injury and whether defendant posed a threat to their safety. (See People v. Chestnut, 51 N.Y.2d 14, 21-22, 431 N.Y.S.2d 485, 409 N.E.2d 958; see also, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Green, 35 N.Y.2d 193, 360 N.Y.S.2d 243, 318 N.E.2d 464.)

Given the lawfulness (cf. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660), time and circumstances of the initial stop, and Officer Martin's observation of the imprint, configuration or outline of a gun, it was reasonable for him to suspect that the defendant posed a threat to his own safety and that of his partner. (See People v. Prochilo, supra 41 N.Y.2d p. 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380.) The search was, therefore, warranted, and the seizure of the gun valid.

MANGANO, COHALAN and WEINSTEIN, JJ., concur.

MARGETT, J., dissents and votes to remand the matter to Criminal Term for further proceedings and hold the appeal in abeyance in the interim, with the following memorandum, with which LAZER, J. P., concurs:

In my view, the matter must be remanded to the suppression court in order for it to "set forth on the record its findings of fact" as was required by CPL 710.60 (subd. 6). That court should then make any supplemental conclusions of law that might be required in light of the restatement of its findings of fact. In the absence of an adequate statement of findings of fact by the suppression court, which alone had the opportunity to hear and observe the witnesses, this court cannot properly determine this appeal.

It is well settled that, as a general matter, findings of fact made by a trial court based upon its resolution of conflicting testimony will not be set aside on appeal, because of the advantages possessed by the trial court in seeing and hearing the witnesses at first hand (Amend v. Hurley, 293 N.Y. 587, 59 N.E.2d 416, revg. 267 App.Div. 612, 48 N.Y.S.2d 92; Barnet v. Cannizzaro, 3 A.D.2d 745, 160 N.Y.S.2d 329; see, generally, 10 Carmody-Wait 2d, § 70:385). Thus, in affirming a judgment entered after a nonjury trial in Barnet v. Cannizzaro (supra, p. 747, 160 N.Y.S.2d 329) we said:

"The credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, were issues for the trier of the facts The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record [citation omitted]."

In affirming a judgment dismissing the complaint entered after a nonjury trial in Rametta v. Kazlo, 68 A.D.2d 579, 581, 418 N.Y.S.2d 113, we said "This court should not disturb the finding of the trier of fact based on a weighing of credibility, absent a clear indication that the defendant's testimony was incredible as a matter of law."

The principle expressed in these and other cases also applies with respect to findings based upon the resolution of conflicting testimony when made by a trial court after a hearing on a motion to suppress evidence as unconstitutionally obtained (People v. Yukl, 25 N.Y.2d 585, 592, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. den. 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89; see People v. Leonti, 18 N.Y.2d 384, 390, 275 N.Y.S.2d 825, 222 N.E.2d 591; People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Newson, 68 A.D.2d 377, 386-387, 417 N.Y.S.2d 264). From this principle, the related principle may be derived that an appellate court should not take it upon itself to assess the relative credibility of witnesses in the first instance where the suppression court has failed to do so. My disagreement with the majority stems from my belief that it has not paid sufficient heed to these principles in reversing the order of the suppression court.

As indicated by the majority's description of the relevant testimony, the testimony of defendant flatly contradicted that of Officer Martin. I would add to that description that defendant testified that while seated in his car he handed his license and registration to one of the officers. The officer apparently returned to his car with these items. Thereafter defendant, who had not seen any sign indicating that he was driving on a one-way street and had seen "car parked there in either direction", went to the driver's side of the officers' car to ask why he had been stopped. Both officers were seated in the car and one appeared to be writing a summons. After one of the officers told him that he had driven the wrong way on a one-way street, and defendant had given his explanation, defendant started back to his car, which was stopped about half a car length from the officers' car. There is no indication in defendant's testimony that his conversation with the officers had been anything but civil or that he had been instructed by the officers at the conclusion thereof to remain at their car. After defendant started back to his car, the officer who had been seated on the passenger side of the officers' car left that car with his gun drawn and told defendant to "it". Defendant complied. The officer then conducted a search of defendant's person, found a "clip" in one of his pockets, and said "where there is smoke, there is fire". The search of defendant's car, which produced the gun in question, then ensued. Of course, Officer Martin did not articulate any reason for such a search of defendant's person or a search of the car since the necessary implication of his testimony was that neither search had occurred.

I agree with the majority that if the facts are properly found to be consistent with Officer Martin's testimony, 1 then the gun was lawfully seized. On the other hand, if the facts are properly found to be consistent with the defendant's testimony, then the gun was seized in violation of defendant's constitutional rights since the fact that defendant had been stopped for a traffic violation and was walking toward his car did not authorize a search of his person at gunpoint in the absence of any articulation by the officers of a valid reason for such a...

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  • People v. Pace
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    • New York Supreme Court — Appellate Division
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    ...in violation of the Vehicle and Traffic Law (People v. Singleton, 41 N.Y.2d 402, 393 N.Y.S.2d 353, 361 N.E.2d 1003; People v. Behlin, 83 A.D.2d 557, 440 N.Y.S.2d 948; People v. Young, 81 A.D.2d 843, 438 N.Y.S.2d 850; cf. People v. Sobotker, 43 N.Y.2d 559, 402 N.Y.S.2d 993, 373 N.E.2d 1218).......
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    ...of a weapon, under a suspect's clothing, will generally suffice to justify the officer's fear of potential harm (see, People v. Behlin, 83 A.D.2d 557, 440 N.Y.S.2d 948, appeal dismissed 55 N.Y.2d 729, 447 N.Y.S.2d 153, 431 N.E.2d 638, cert. denied 455 U.S. 1025, 102 S.Ct. 1727, 72 L.Ed.2d 1......
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    • New York Court of Appeals Court of Appeals
    • November 24, 1981
    ...New York. Nov. 24, 1981. On summary consideration, appeal dismissed on the ground that the reversal by the Appellate Division, 83 A.D.2d 557, 440 N.Y.S.2d 948, was not "on the law alone or on the law and such facts which, but for the determination of law, would not have led to reversal" (CPL ...

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