People v. Dart

• Decision Date: 29 October 1992
• Citation: 186 A.D.2d 905,589 N.Y.S.2d 208
• Parties: The PEOPLE of the State of New York, Respondent, v. David W. DART, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 208

589 N.Y.S.2d 208

186 A.D.2d 905

The PEOPLE of the State of New York, Respondent, v. David W. DART, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 29, 1992.

John Ferrara, Monticello, for appellant.

Michael V. Coccoma, Dist. Atty., Cooperstown, for respondent.

Before MIKOLL, J.P., and YESAWICH, LEVINE, CREW and HARVEY, JJ.

YESAWICH, Justice.

Appeal from a judgment of the County Court of Otsego County (Mogavero Jr., J.), rendered March 4, 1991, upon a verdict convicting defendant of the crime of murder in the second degree.

As a result of the fatal stabbing of Gillian Gibbons in a municipal parking garage in the City of Oneonta, Otsego County, between 1:30 and 2:00 P.M. on September 12, 1989, defendant was indicted for murder in the second degree in violation of Penal Law § 125.25. Following a jury trial, defendant was convicted and sentenced to an indeterminate period of incarceration of 25 years to life. Defendant appeals, claiming that his confession and physical evidence seized from his car and residence were the products of an illegal detention and should have been suppressed, that County Court abused its discretion when it restricted the time allowed counsel to question prospective jurors, and that the court's circumstantial evidence charge was objectionable to the point of warranting a reversal of his conviction and a new trial. We affirm.

Testimony elicited at the suppression hearing reveals that on the morning of September 14, 1989, a young woman advised the police that two days earlier, at about 1:15 P.M., she observed defendant, whom she knew because they had attended the same school, "hanging around" in the garage near the stairwell which led to the parking level where the victim's car was located. She also informed the police that when defendant was younger he had been implicated in a sexual assault involving a girl. Upon receiving that information, members of a joint homicide team comprised of State Troopers and Oneonta police officers initiated mobile surveillance of defendant's activities. When defendant, for no apparent reason, drove by the murder site on at least two occasions and after he had proceeded along State Route 28, several miles from the scene of the homicide, the surveillance team of State Police Senior Investigator Robert Courtright and Oneonta Police Officer Allen Taylor stopped defendant's vehicle for the purpose of questioning him. Given the officers' knowledge that a witness reported seeing defendant in the garage at approximately the time when the stabbing occurred and the fact that they had observed defendant unnecessarily drive by the crime scene several times that day, notwithstanding the contrary view held by defendant, we find these conditions led to a reasonable suspicion that defendant committed the crime and hence afforded the officers an adequate basis to stop defendant's vehicle for the purpose of making further inquiry (see, People v. Dayter, 112 A.D.2d 643, 645, 492 N.Y.S.2d 160, lv. denied 66 N.Y.2d 614, 494 N.Y.S.2d 1037, 485 N.E.2d 241).

His car having been pulled over, defendant was interviewed for about 30 minutes in the police car. The officers then asked defendant to accompany them to the police station for further questioning, which he did. After about two hours at the station, and being confronted with the fact that he had been seen in the parking garage at about the time of the murder and that he had previously represented to the officers that he was at home some 30 miles away at the time, defendant broke down, orally confessed to the killing and gave the police a map showing the location of the murder weapon, where it was ultimately found. Pursuant to consent forms signed by defendant, police searched his car and apartment and found the knife sheath. It is this evidence, and the confession, which defendant argues should have been suppressed.

There is no doubt that once defendant confessed, probable cause for his arrest was present. He contends, however, that he was placed in custody before there was probable cause to do so, either when he entered the police vehicle or when he was transported to the police station for further questioning. We are unconvinced.

The officers testified that after they stopped defendant's vehicle, he voluntarily agreed to sit in the back seat of the two-door unmarked police car to be questioned, and that he later agreed to go with them to the police station for further questioning. Nothing in the record indicates that defendant refused to cooperate in any way, or that the officers proceeded in spite of resistance. No guns were drawn, defendant was not handcuffed, nor was he told that he was under arrest. Having been arrested several times before, defendant testified that each time he had been informed that he was under arrest. Thus, the record supports County Court's determination after the suppression hearing that the People carried...