People v. Carter

• Decision Date: 16 November 1979
• Citation: 72 A.D.2d 963,422 N.Y.S.2d 258
• Parties: PEOPLE of the State of New York, Respondent, v. Kenneth J. CARTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 258

422 N.Y.S.2d 258

72 A.D.2d 963

PEOPLE of the State of New York, Respondent, v. Kenneth J. CARTER, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 16, 1979.

Edward J. Nowak, Rochester by William G. Pixley, Rochester, for appellant.

Lawrence T. Kurlander, Dist. Atty., Rochester by Sharon P. Stiller, Rochester, for respondent.

Before HANCOCK, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.

MEMORANDUM:

Defendant was convicted of second degree murder (felony murder) (Penal Law, § 125.25, subd. 3), first degree robbery (Penal Law, § 160.15, subd. 1) and petit larceny (Penal Law, § 155.25) in connection with the fatal shooting of a grocer during an armed hold-up of his store in Rochester on November 30, 1974. On appeal defendant contends, inter alia, that the police lacked sufficient basis for stopping the automobile that he was driving at the time of his arrest (see People v. Marner, 47 N.Y.2d 982, 419 N.Y.S.2d 963, 393 N.E.2d 1036; People v. Sobotker, 43 N.Y.2d 559, 402 N.Y.S.2d 993, 373 N.E.2d 1218) and for the restraint that was applied following the stop after the defendant fled from the automobile. Inasmuch as the stop and his detention were assertedly unlawful, defendant maintains that his subsequent confessions should have been suppressed as the product of illegal police conduct (see Dunaway v. New York, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824; Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416.) On the Huntley hearing, although defense counsel attempted to explore these issues and succeeded in adducing some testimony relating thereto, the trial court specifically limited the scope of the hearing to the question of the voluntariness of the defendant's confessions and made factual findings with respect only to that question. This was error (People v. Misius, 47 N.Y.2d 979, 419 N.Y.S.2d 961, 393 N.E.2d 1034). Although one of the officers who stopped defendant's car testified, the officer who actually apprehended the defendant when he left the car was not called. Because of the inadequacy of the present record, the improper limitation on the scope of the hearing and the absence of factual findings on the issues of the stop and detention, the matter must be remitted for a further hearing on these issues and for a resolution of the disputed factual questions in appropriate findings. (See People v. Misius, supra; People v. Thomas, 65 A.D.2d 933, 410 N.Y.S.2d 438.)

Case held, decision reserved and...