People v. Crutchfield

Decision Date20 May 1985
Citation111 A.D.2d 346,489 N.Y.S.2d 327
PartiesThe PEOPLE, etc., Respondent, v. Earl CRUTCHFIELD a/k/a Derik Dickson, Appellant.
CourtNew York Supreme Court — Appellate Division

William E. Hellerstein, New York City (Mark C. Cogan, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Lisa Margaret Smith, Asst. Dist. Attys., and Seth M. Lieberman, Brooklyn, of counsel), for respondent.

Before TITONE, J.P., and BRACKEN, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 3, 1982, convicting him of murder in the second degree (two counts), attempted murder in the second degree, manslaughter in the second degree (two counts), attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence.

Judgment modified, as a matter of discretion in the interest of justice, by reversing the conviction for assault in the second degree and vacating the sentence imposed thereon. As so modified, judgment affirmed, and new trial ordered as to the seventh count of the indictment charging defendant with assault in the second degree.

It is reversible error to submit to the jury a theory of liability not contained in the indictment (People v. Duncan, 46 N.Y.2d 74, 79, 412 N.Y.S.2d 833, 385 N.E.2d 572; People v. Kaminski, 58 N.Y.2d 886, 887, 460 N.Y.S.2d 495, 447 N.E.2d 43). Although the Trial Judge read to the jury the count of the indictment charging defendant with assault in the second degree, pursuant to a felony assault theory (Penal Law § 120.05), he thereafter instructed the jury on the elements of assault in the third degree (Penal Law § 120.00). Since we cannot be confident that the jury found defendant guilty of the crime of which he was charged, the assault conviction is hereby reversed, as a matter of discretion in the interest of justice (People v. Melendez, 96 A.D.2d 517, 465 N.Y.S.2d 38).

Defendant raises several other issues on appeal; the following warrant a brief discussion.

We reject defendant's contention that the police lacked reasonable suspicion to stop the vehicle in which he was an occupant and lacked probable cause to arrest him. The arresting officer testified that at approximately 1:50 A.M., on April 23, 1981, he and his partner were parked at the corner of Mermaid Avenue and West 24th Street when he heard "banging noises". Shortly thereafter, he observed from a block away one tall and one short male running across Mermaid Avenue and south on 25th Street, towards Surf Avenue. Moments later, the officer drove the patrol car around the corner onto West 25th Street, towards Surf Avenue, and observed a tall man standing beside a parked Lincoln Continental automobile. The officer pulled alongside the Lincoln and saw a woman seated in the front passenger seat. After the tall man conversed with the woman, he walked into a building. There were no other people on that block. The officer then backed the patrol car down the block returning to the corner of Mermaid Avenue and 25th Street where he was met by a group of people running out of a social club located on Mermaid Avenue, close to that corner. The people informed the officers that two men had shot three people in the club. While the officer was being informed of the shooting, the Lincoln pulled away from the curb and proceeded, in an erratic manner, south on 25th Street towards Surf Avenue. At this point, the officer possessed the reasonable suspicion required to stop the Lincoln and to order its occupants, defendant and a female driver, Janice Campbell, out of the vehicle for questioning (see People v. Rosario, 94 A.D.2d 329, 465 N.Y.S.2d 211; People v. Crosby, 91 A.D.2d 20, 457 N.Y.S.2d 831, lv. denied 59 N.Y.2d 765, 464 N.Y.S.2d 1028, 451 N.E.2d 507; People v. Brooks, 88 A.D.2d 451, 453 N.Y.S.2d 740; People v. Finlayson, 76 A.D.2d 670, 431 N.Y.S.2d 839, lv. denied 51 N.Y.2d 1011, 435 N.Y.S.2d 1030, 417 N.E.2d 98, cert. denied 450 U.S. 931, 101 S.Ct. 1391, 67 L.Ed.2d 364). The officer's drawing of his gun when he ordered defendant and his female companion out of the car did not transform the confrontation into an arrest, as this was a reasonable self-protective measure under the circumstances (see People v. Chestnut, 51 N.Y.2d 14, 21, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. denied 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479; People v. Rosario, supra; People v. Brooks, supra; People v. Livigni, 88 A.D.2d 386, 453 N.Y.S.2d 708, affd. 58 N.Y.2d 894, 460 N.Y.S.2d 530, 447 N.E.2d 78; People v. Finlayson, supra ). Upon observing two guns in plain view in front of the passenger seat of the car, the officer had probable cause to arrest defendant (see People v. John BB., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864, cert. denied 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400; People v. Pacifico, 95 A.D.2d 215, 465 N.Y.S.2d 713; People v. Livigni, supra ).

Defendant next contends that the identification of him by an eyewitness, who had been injured in the shooting, should have been suppressed. Defendant had been wounded during the incident and was taken to a hospital by the police. The identification of defendant occurred when he was lying next to the eyewitness in a hospital emergency room. Said identification was admissible because it was spontaneous and resulted from an accidental, rather than a police-arranged identification procedure (People v. Logan, 25 N.Y.2d 184, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. denied 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513; People v. Graham, 67 A.D.2d 172, 176, 415 N.Y.S.2d 714; People v. Gonzalez, 61 A.D.2d 666, 403 N.Y.S.2d 514, affd. 46 N.Y.2d 1011, 416 N.Y.S.2d 239, 398 N.E.2d 834, writ granted sub nom. Gonzalez v. Hammock, 477 F.Supp. 730, revd. 639 F.2d 844 cert. denied, 449 U.S. 1088, 101 S.Ct. 880, 66 L.Ed.2d 815; Lindsay v. Henderson, 499 F.Supp. 667, 670).

Defendant also argues that the circumstantial evidence adduced at trial was insufficient to convict him of acting in concert with his accomplice to commit an attempted robbery in the social club, an offense underlying the felony murder counts in the indictment. According to the prosecution witnesses, a tall man came into the social club, bought two cans of beer and then went back outside. The man soon returned to the club with a shorter man, identified as the defendant. Defendant asked to exchange his beer for another. He then drew his gun and ordered the patrons of the social club not to move and to "hit the deck". Kenneth Bryson grabbed the defendant from behind. During the...

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