People v. Bergers

• Decision Date: 16 December 1975
• Citation: 377 N.Y.S.2d 67,50 A.D.2d 764
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert BERGERS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 67

377 N.Y.S.2d 67

50 A.D.2d 764

The PEOPLE of the State of New York, Respondent, v. Robert BERGERS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 16, 1975.

A. C. Anzalone, New York City, for respondent.

R. L. Hartz, New York City, for defendant-appellant.

Before STEVENS, P.J., and MARKEWICH, KUPFERMAN, CAPOZZOLI and LANE, JJ.

PER CURIAM.

Judgment, Supreme Court, New York County, render June 27, 1973, after jury trial, unanimously reversed, on the law, the motion to suppress evidence granted, and the indictment dismissed.

The stop by police of the auto in which contraband was found was no less based on more suspicion than that in People v. Martinez, Court of Appeals, April 28, 1975 (37 N.Y.2d 662, 376 N.Y.S.2d 469, 339 N.E.2d 162), nor even the situation found in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. It was based, as far as the record goes, on the fact that the vehicle bore out-of-state plates and had been seen in the neighborhood earlier that day. See the discussion of cases on the subject per Lutsky, J., People v. Grant, Supreme Court, Kings County, NYLJ, Nov. 14, 1975, p. 11, col. 2. On the facts here found, it does not appear necessary to consider whether People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39, continues to be nonretroactive in effect (People v. Simone, 48 A.D.2d 497, 336 N.Y.S.2d 416) or was actually declared retroactive in People v. Martinez, supra.