People v. Booker

• Decision Date: 26 February 1990
• Citation: 552 N.Y.S.2d 150,158 A.D.2d 700
• Parties: The PEOPLE, etc., Respondent, v. Donald BOOKER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 150

552 N.Y.S.2d 150

158 A.D.2d 700

The PEOPLE, etc., Respondent, v. Donald BOOKER, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 26, 1990.

Patrick R. Garcia, Brooklyn, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter R. Chatzinoff and Camille O'Hara Gillespie, of counsel), for respondent.

Before KOOPER, J.P., and HARWOOD, ROSENBLATT and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered February 9, 1988, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence, statements made by him to law enforcement officials, and identification testimony.

ORDERED that the judgment is affirmed.

Two men were observed by an eyewitness removing certain items from an apartment house which looked like television equipment. The eyewitness, who resided across the street, dialed the police emergency telephone number "911", identified himself by name and telephone number, reported that a "robbery" of a building was in progress and described the suspects by sex, clothing and skin color. Two police officers responded to the scene within minutes and observed the defendant and a cohort, the only persons in the area matching the description, on the sidewalk at the location specified in the radio transmission frantically hailing a cab. A television set and a tape deck, later identified by serial number as belonging to an occupant of an apartment which bore the signs of illegal entry, were on the sidewalk nearby.

While seeking from the defendant and his cohort an explanation of their conduct, the inquiring officer noticed a bulge along the defendant's pant leg. A pat down frisk and limited search produced a crowbar. A pat down frisk of another bulge and a search of defendant's pockets produced jewelry and other items later identified as belonging to the apartment occupant who also owned the television and tape deck. The defendant and his cohort were identified at the scene by the eyewitness as the two men to whom he referred when he dialed the police emergency telephone number. The police officers and the eyewitness testified at the suppression hearing.

We agree with the suppression court's finding that the police had reasonable cause to suspect the defendant and his cohort had committed or were committing a crime so as to justify making limited inquiry of them (see, CPL 140.50[1]; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Alford, 146 A.D.2d 635, 536 N.Y.S.2d 848; People v. Perry, 133 A.D.2d 380, 519 N.Y.S.2d 377 affd. 71 N.Y.2d 871, 527 N.Y.S.2d 760, 522 N.E.2d 1058). The bulges, at least one of which the officer testified at the suppression hearing he believed to be a weapon, although not necessarily a gun, justified the limited self protective searches (see, CPL 140.50[3]; People v. Perry, supra ) which in turn produced items that, under the totality of the circumstances, provided justification for the defendant's brief detention pending confirmatory identification by the neighborhood witness (see, People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861; People v. Coe, 133...