People v. Davis
| Citation | 460 N.Y.S.2d 289,92 A.D.2d 177 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Charles DAVIS, Defendant-Appellant. |
| Decision Date | 08 March 1983 |
| Court | New York Supreme Court Appellate Division |
Judith L. Turnock, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-appellant.
Allen H. Saperstein, New York City, of counsel (Steven R. Kartagener, Asst. Dist. Atty., New York City, with him on the brief; Mario Merola, Dist. Atty., New York City, attorney), for respondent.
Before KUPFERMAN, J.P., and ROSS, CARRO, BLOOM and KASSAL, JJ.
Since June 15, 1979 the defendant, who was twenty-eight years old and who had twice been convicted of violent felonies, was a fugitive from justice. On May 22, 1979 this Court unanimously affirmed (70 A.D.2d 549, 416 N.Y.S.2d 452) defendant's conviction and sentence concerning another crime unrelated to the instant proceeding. A Bronx jury, in 1978, had convicted him of robbery in the second degree and after his conviction the trial judge sentenced him, as a second felony offender, to an indeterminate term of from five to ten years imprisonment. Subsequent to that affirmance, when the defendant did not surrender to start serving this sentence, a warrant, dated June 15, 1979, was issued for his arrest.
While a fugitive, defendant changed his residence to an apartment situated in the Marble Hill housing complex located in the Bronx. Also living in that housing complex was Marjorie Marin (Marjorie). Her apartment was located on the ninth floor of 69 West 225th Street.
In September 1979, Marjorie had been defendant's girlfriend for about two months and had talked of going to Florida with him.
Before defendant appeared on the scene, Marjorie had been romantically involved with John Purig (John) for about two and one-half years, and they had lived together from 1977 to 1978. John became aware that Marjorie was seeing defendant. On the afternoon of September 25, 1979, he went, unannounced, to Marjorie's home, in order to confront her about her relationship with defendant. As he emerged from the elevator, she and the defendant were in the hallway, waiting for the elevator. Thereafter, John, Marjorie and defendant rode down together to the first floor. During the ride down, John and Marjorie exchanged words, while defendant remained silent. John said to Marjorie, in a voice loud enough for defendant to hear, "how ... (can you) associate with such a person?" (Material in parenthesis added). Defendant testified that when he heard this remark he "smiled" because he thought it was funny.
After the elevator stopped at the first floor, John and Marjorie continued to talk with each other, while the defendant walked a short distance away. Defendant testified that, as John was leaving, John said to defendant: "What was I doing going out with her" and, defendant's response was: "I laughed at him." John was upset. Then, defendant testified that John said to defendant: "Don't worry, I'll get mine"; and, defendant's response was: "I laughed and I walked off."
At about 8:30 A.M. on September 27, 1979 John drove to Marjorie's home. This trip, like the one on September 25, 1979, was unannounced. He met Marjorie in the hallway of the apartment house and again the subject was Marjorie's relationship to defendant. He testified that during this conversation, in response to Marjorie's statement that defendant would take care of him, he (John) indicated to her that he also had a gun. This conversation terminated and he returned to his car and waited. Marjorie came downstairs and spoke further to John. Marjorie was crying when she left him to return to the apartment. John remained in the car.
When Marjorie entered the apartment, defendant was waiting for her. According to defendant, Marjorie warned defendant:
" 'Don't go downstairs,' so I asked her, 'Why not?' and she says, 'Because Johnny is downstairs and he is waiting for you and he has a pistol' ... I asked her, "Why is he waiting for me?' and she just says, 'He showed me a pistol and he is threatening to use it on you' ... Well, I told her I will be right back up and I went downstairs."
Defendant went downstairs wearing a holster containing a fully loaded pistol. Even though defendant contended that he only began carrying this pistol on his person since he had talked with John two days before, he admitted that he had purchased the gun from someone in the street a couple of weeks before that confrontation. Thus, he acquired possession of this weapon at a time while he was a fugitive and prior to any alleged threat from John.
John contended that defendant walked toward John's car carrying a gun in his hand. Therefore, he testified: "I decided that I should seek assistance" and drove away.
The defendant's version of what happened, as he approached the car, differs from John's. Defendant testified that John rolled down the car window, and stuck out what appeared "to be a pistol". Further, defendant testified that in reaction to John's production of a pistol the defendant put his hand on his own pistol and then, as John drove away, John said: " 'I will be back and I'm going to take care of you." '
Later that morning, defendant, Marjorie, and Marjorie's five year old daughter left the apartment building. When they arrived in the street, defendant looked over his should and saw John standing with a group of men. According to defendant this sight panicked him because he believed that John "was making good on his threat" and so defendant ran. However, defendant admitted that neither John nor any of the men that he was with made any threatening move towards him before he ran.
As mentioned supra, John testified that he drove away to seek assistance. Between 9:00 and 9:30 A.M. he stopped a New York City Police Department marked radio patrol car occupied by uniformed Sergeant Patrick Dudgeon (Dudgeon) and Uniformed Police Officer Dominio, the driver. He told them that the defendant had a gun and took these police officers back to the apartment building where Marjorie lived. Dudgeon testified that, when they arrived at the building, John, Dudgeon and Dominio got out of their respective vehicles and talked in front of that building.
As a result of this conversation, Dudgeon summoned the 52nd Precinct Anti-Crime Unit to come to that location. Shortly thereafter an unmarked police car arrived containing four officers, to with: Sergeant Koswicki, Albert Calisc (Calisc), James Finnegan (Finnegan) and Richard Messemer (Messemer). These Anti-Crime officers exited their car and joined the two uniformed officers and John on the sidewalk. Even though these four Anti-Crime officers were wearing civilian clothes, they each had their police shields displayed on chains hanging around their necks. 1
While John was talking to these uniformed and non-uniformed police officers, he suddenly exclaimed loudly "that's him" and pointed toward the defendant who was coming out of the building. After John's yell, uniformed Sergeant Dudgeon looked in the direction that John was pointing and: "looked at the ... (defendant) and ... (the defendant) began to run" (material in parenthesis added). Then Finnegan, wearing his badge around his neck, shouted at defendant " 'Stop, police.' " 2
Despite it being broad daylight and with uniformed and non-uniformed police officers--who were prominently displaying their shields--being present, the defendant continued to run.
Sergeants Dudgeon and Koswicki, as well as officers Calisc and Finnegan, pursued defendant through the project buildings, a parking lot and courtyards. In the course of the chase, Dudgeon Calisc and Finnegan at different times called out 2A "Halt, police" and "Police, stop"; but the defendant kept on running.
Clifford Aikman (Aikman) and David Millan (Millan), who were employees of the Marble Hill Housing Project, heard the shouts of "halt, police". 3 Then Aikman and Millan saw defendant running and being chased by a police sergeant in uniform and by another officer in civilian clothes with "a chain around his neck which had a badge on it". 3A Millan testified that defendant ran right by him carrying a gun in his (defendant's hand), which defendant pointed at Millan's face. 3B In fact, Millan heard the gun that was pointed at him click". 3B
Officer Messemer maneuvered the unmarked police car which had its siren on and red lights flashing, so as to corner defendant in an alleyway. Messemer stopped the car and got out. He testified: 4
(material in parenthesis added)
Calisc testified: 5
"I looked up the alley to see where the defendant was located in the alleyway ... (and) the defendant was located behind a lamp post, holding a gun down and fired at me (Calisc), at which time I returned one shot" (material in parenthesis added).
Officer Finnegan dropped out of the foot chase and got into the marked radio car, mentioned supra, and uniformed officer Dominio drove him to the alleyway, where the shots were being fired. When they arrived at the alleyway,...
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