People v. Class

• Decision Date: 29 November 1983
• Citation: 468 N.Y.S.2d 892,97 A.D.2d 741
• Parties: The PEOPLE of the State of New York, Respondent, v. Benigno CLASS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 892

468 N.Y.S.2d 892

97 A.D.2d 741

The PEOPLE of the State of New York, Respondent, v. Benigno CLASS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Nov. 29, 1983.

R.L. Stavis, Little Neck, for respondent.

M. Cogan, New York City, for defendant-appellant.

Before CARRO, J.P., and ASCH, SILVERMAN, BLOOM and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, rendered on December 10, 1981, affirmed.

All concur except CARRO, J.P., who dissents in a memorandum as follows:

Defendant was stopped for driving 5 to 10 miles above the speed limit and because the windshield on the passenger side was badly cracked. When the officers (who were not in uniform and drove an unmarked patrol car) pulled up next to him, flashed a badge and ordered him to pull over, he did so. Mr. Class got out of the car and walked back to the officers, who had also alighted. One officer asked him for his license and registration, while the other officer went over to the car. Defendant produced an insurance card and the registration, but had no license to show. As defendant and the first officer discussed this, the second officer opened the car door on the driver's side, allegedly to check the Vehicle Identification Number. There was no VIN on the car door, so the officer (testified that he) checked the dashboard, but it was obstructed by "something", which he pushed away. As he did that he saw what appeared to be the "handle of a gun sticking out from the driver's seat underneath." A .22 caliber pistol was recovered, Mr. Class was arrested and in the ensuing search of defendant, ammunition was recovered. Summonses were also issued for unlicensed operation of a motor vehicle and driving with a broken windshield.

The above recitation of the facts is a distillation of the two officers' testimony, which the suppression court accepted. The officers also testified that they had no basis for believing the car to be stolen, the registration papers later checked out as valid (no radio run was made on the car at any time) and the VIN was never even copied down by the officer who allegedly searched for it.

The court below denied defendant's suppression motion by ruling that the gun had been "in plain view" when seized. The court found the initial search for the VIN to be justified, "notwithstanding any lack of probable cause to believe the car had been stolen," because "the defendant's conduct, that is, immediately exiting the car and walking over to the police car, instead of waiting in his automobile, coupled with the fact that the defendant did not have a driver's license in his possession, made these officer's actions quite reasonable and prudent under the circumstances."

Such reasoning bends both logic and the law, the latter in violation of the constitutional prohibition against unreasonable searches and seizures. U.S. Const., Amend. IV. This incident occurred about 4:30 in the afternoon, on a sunny day, right before the onset of rush-hour. There was not the slightest hint in the officer's testimony that this was a high crime area or that they...