People v. Brooks

Decision Date30 August 1982
Citation88 A.D.2d 451,453 N.Y.S.2d 740
PartiesThe PEOPLE, etc., Respondent, v. Floyd BROOKS, Appellant.
CourtNew York Supreme Court — Appellate Division

Bruce H. Belsky, Mineola (Renee G. Mayer, Mineola, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Lawrence J. Schwarz, Asst. Dist. Attys., Mineola, of counsel), for respondent.

Before MOLLEN, P. J., and NIEHOFF, RUBIN and BOYERS, JJ.

BOYERS, Justice.

We are asked on this appeal to consider inter alia, (1) whether the statements made by the defendant to the police upon being stopped after the commission of the crime herein involved and later at the police station after his arrest should have been suppressed by the trial court either because the initial stop of the automobile driven by defendant was illegal or because the police officer who stopped the vehicle ordered the defendant out of the car at gunpoint, and (2) whether the denial by the trial court of defense counsel's application for an adjournment for the purpose of obtaining a portion of the transcript of defendant's first aborted trial, allegedly needed to aid him in impeaching a prosecution witness during cross-examination, prejudiced the defendant and rendered his trial unfair. It is our opinion that the suppression motion was properly denied and that the trial court's failure to grant defense counsel's application for an adjournment did not in any way affect the jury's verdict.

On Saturday, February 24, 1979, at approximately 3:00 a. m., James Warner, the custodian of Schreiber High School in Port Washington, New York, observed that there had been an intrusion into the school. He contacted the police and Officers Bucking and Soper responded in separate squad cars. Bucking arrived first. Together with Mr. Warner, Bucking entered the school, surprising the intruders who thereupon fled from the building. It was raining heavily.

As Officer Bucking pursued the intruders, he observed that they were three black males. One ran off in one direction; the other two, one wearing a grey coat and the other a blue coat, ran in another direction with Bucking close behind, entered a wooded area and disappeared from the officer's sight. A few seconds later Bucking heard a car engine start. Knowing that Officer Soper was positioned on a nearby roadway, Bucking immediately communicated with Soper over his walkie-talkie informing him that he had heard a car start, in which direction the car was heading, and of the types of coats worn by the two black males.

About 30 seconds later, a 1976 Lincoln automobile driven by the defendant passed by Officer Soper who, in turn, put on his flashing lights and, after following the car for a very short distance, directed the defendant to stop. Soper observed some motion in the rear seat of the car and noted that the rear windows were fogged up. He exited his vehicle with his gun drawn and, pointing it at defendant, directed him to get out of his car. As defendant alighted, he stated to Soper, "Why are you stopping me? I'm just here with my girl." Soper then approached the car, saw two other male blacks and a black female inside and directed them to get out as well. One of the male blacks was wearing a blue coat and there was a grey coat on the back seat of the car. This was consistent with the coats described to him by Bucking. Soper then placed the three men under arrest. Defendant was advised of his Miranda rights during the journey to the station house. Upon reaching the police station, and after being further advised of his Miranda rights, defendant gave a detailed statement to the police, which though generally exculpatory, was in certain aspects supportive of the People's case at trial.

Testifying on his own behalf at the Huntley hearing, the defendant initially claimed not to have made any statements at all to the police, either at the scene or the station house. However, he later conceded that he did make a statement to Officer Soper as he exited his car but not exactly that which was claimed by Soper to have been made. Although defendant testified that Soper aimed his gun at his head when he ordered him from the vehicle, defendant did not assert that he felt compelled by this act to say anything at that time.

Defendant's application to suppress his statements as set forth in his pretrial omnibus motion was merely a boiler-plate demand for suppression. No specific statement was referred to, no claim of specified involuntariness was asserted and no argument in support of suppression was made. Nevertheless, in their desire to insure that a complete record was made (see People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269), the People consented to a Huntley hearing. Though at the conclusion of the hearing, defense counsel conceded that once Officer Soper saw the coats, one on one of the suspects and the other on the seat of the car, he had probable cause to arrest the three men, he argued that Soper had no lawful reason to stop defendant's car. Defense counsel referred to Officer Soper's use of his gun, but his sole contention in this regard was that defendant's statement, made as he exited his vehicle, was not spontaneous because it was made at gunpoint. No other argument was presented as to this contention and it was not further developed.

The trial court denied defendant's motion to suppress, finding, inter alia, that the stop of the car driven by the defendant was based upon reasonable suspicion, that the statement made to Soper by defendant as he exited his car constituted a spontaneous utterance and that the police testimony was credible, while that given by defendant was not.

Upon appeal, defendant contends, inter alia, that (1) the police did not have sufficient cause to justify the stop of his automobile, (2) Soper's use of his gun was improper because he was not possessed of articulable facts from which it could be reasonably inferred that he was in fear of the use of deadly physical force, and (3) the use of the gun created a situation where he believed he had to verbally respond to the officer when stopped and, accordingly, his statement made at that time was not spontaneous.

It is well-established in this State that a police officer may not stop an automobile unless he is possessed with at least reasonable suspicion to believe that criminal activity has taken place and that the driver of the car or its occupants were participants therein (People v. Sobotker, 43 N.Y.2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218). The term "reasonable suspicion" has been defined as denoting "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v. Cantor, 36 N.Y.2d 106, 112-113, 365 N.Y.S.2d 509, 324 N.E.2d 872). This belief, however, may not be a mere hunch; it must be based upon articulable facts which, when examined objectively would lead others to the same conclusion (see People v. Sobotker, supra ). Utilizing this standard, we think that Officer Soper was justified in stopping defendant's automobile.

Soper was possessed of knowledge that three intruders had just been interrupted and caused to flee from the nearby high school. He had positioned himself on a back road leading away from the school. Two of the perpetrators were chased from the school by a fellow police officer to a point where, though he lost sight of them, he heard a car start. Thirty seconds thereafter, defendant's vehicle, driven by a black male, passed Officer Soper. The...

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