People v. Boyer

• Decision Date: 09 November 1978
• Citation: 65 A.D.2d 840,410 N.Y.S.2d 167
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel E. BOYER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 167

410 N.Y.S.2d 167

65 A.D.2d 840

The PEOPLE of the State of New York, Respondent, v. Daniel E. BOYER, Appellant.

Supreme Court, Appellate Division, Third Department.

Nov. 9, 1978.

Douglas P. Rutnik, Albany County Public Defender, Albany (Terrence L. Kindlon, Albany, of counsel), for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany (Melissa L. Campbell, Albany, of counsel), for respondent.

Before SWEENEY, J. P., and STALEY, MAIN, LARKIN and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered September 22, 1977, upon a verdict convicting defendant of the crimes of burglary in the third degree, and grand larceny in the second degree.

At about 4:30 A.M. on June 2, 1977, two police officers in a patrol car noticed defendant standing in the street in front of the premises at 345 Broadway in the City of Albany, calling for a taxi which was about three blocks away. They proceeded slowly past him and, their suspicions being aroused, went around the block and returned to 345 Broadway and found defendant gone. They then found a window broken in 345 Broadway, and other signs of entry into the building. They then broadcast a description of defendant. The officers began checking the neighborhood for defendant and went into Coulson's News Center on Broadway where they were advised that someone matching defendant's description had been seen getting into a yellow colored cab. This information was also broadcast. Shortly thereafter, another patrol car saw a cab near the intersection of Madison Avenue and Green Street and they noticed a black male in the cab who appeared to match the description which had been broadcast. They stopped the cab, and asked him to step out so they could speak to him.

Defendant denied that he had been on Broadway, but since he matched the description that had been broadcast, the officers who had made the broadcast were called to the scene. These officers identified him, and he was asked if he would go with them to the Detective Office. Defendant had a cut on the back of his left hand.

They then proceeded to the Detective Division Office where he was advised that they were investigating a burglary, and advised him of his "Miranda " rights. He was asked if he would empty his pockets which he did. Among the articles which were in his pockets were some watches, a set of keys and foreign currency. The officers then obtained a list of the property which was missing from the scene of the burglary which included two stop watches and a set of keys. Two stop watches and the set of keys which had been in defendant's pockets were thereafter identified by the owner as having been reported missing in the burglary. Defendant thereafter admitted his participation in the burglary and signed a confession.

Defendant then moved to suppress the confession and the items obtained from defendant's pockets. After the hearing, the motion was denied. Upon the trial, the prosecution introduced into evidence a leather glove with bloodstains found near the scene which defendant had admitted was his, and also a piece of bloodstained glass found at the scene. The jury found defendant guilty of burglary in the third degree, and grand larceny in the second degree. On September 22, 1977, defendant was sentenced to an indeterminate sentence with a minimum of three and one-half years, and a maximum of seven years for each conviction, the sentences to run concurrently.

On this appeal, defendant contends that the denial of the motion to suppress constitutes reversible error in that there was no probable cause to initially detain defendant, and the evidence acquired as a result of such illegal detention constituted inadmissible evidence.

The temporary detention of defendant for questioning was justified by police officers' reasonable suspicion (People v. Morales, 42 N.Y.2d 129, 397 N.Y.S.2d 587, 366 N.E.2d 248). Police may approach a person for information where there is some objective credible reason for that interference not necessarily indicative of criminality. The police may exercise a common law right to inquire upon a founded suspicion that criminal activity is afoot. In such cases, the police are entitled to interfere with the citizen to the extent necessary to gain explanatory information but short of a forcible seizure.

Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing, or is about to commit a felony or misdemeanor, section 140.50 of the Criminal Procedure Law authorizes a forcible stop and detention of that person. Finally,...