People v. Dodt

CourtNew York Court of Appeals
Citation462 N.E.2d 1159,474 N.Y.S.2d 441,61 N.Y.2d 408
Parties, 462 N.E.2d 1159 The PEOPLE of the State of New York, Respondent, v. Richard DODT, Appellant.
Decision Date29 March 1984
[462 N.E.2d 1161] Peter R. Porco, Albany, for appellant

MEYER, Judge.

Proof in a kidnapping prosecution that defendant threatened the use of a gun is sufficient to establish abduction by the threatened use of deadly physical force, even though there is no evidence that in fact he possessed an operable firearm. There must, nevertheless, be a reversal and a new trial. The lineup identification that followed immediately after defendant's arrest should have been suppressed, the prosecution having failed to offer evidence at the pretrial suppression hearing concerning the content of the teletype communication on the basis of which the arrest was made and, therefore, having failed to establish probable cause for arrest.


Shortly after midnight on February 20, 1981, Theresa Culp finished her shift as a nurse at the Albany Medical Center. As she approached her car in the parking lot, she heard the footsteps of a person running behind her. A man, identified at trial as defendant, caught up to her and then fell down by her car. Seeking to be helpful, Mrs. Culp talked to the man for about two minutes. As she turned to enter her car, however, the man grabbed her from behind and pushed her across the parking lot toward another car the passenger door of which was open.

The assailant held his right hand over Mrs. Culp's mouth and used his body to push her, while repeatedly warning, "Don't scream lady, I've got a gun in my pocket." After moving about 40 feet in this fashion, the man placed his left hand on Mrs. Culp's head to prevent her from struggling, and that caused the fingers of his right hand to slip into her mouth. She then bit down on one of his fingers hard enough to loosen several of her teeth, causing the attacker to release his grip. When Mrs. Culp then began screaming, the man fled in the car.

Defendant was arrested the following day and was identified by Mrs. Culp in a lineup. He was charged in a one-count indictment with kidnapping in the second degree in that he abducted Mrs. Culp by restraining her and dragging her to his car and while doing so threatening her that he was armed with a gun.

Defendant moved to suppress Mrs. Culp's identification as the fruit of an arrest made without probable cause. At the suppression hearing, the arresting officer testified that he stopped defendant's car at about 5:00 a.m. on the day after the incident because the car matched a teletype description the officer had received. That teletype did not contain any information about the crime to which it related. Although the officer testified that the teletype included a "general physical description of the subject," neither he nor anyone else testified what that description was, nor was any evidence presented of the description Mrs. Culp had offered when reporting the crime or of the extent to which defendant's appearance matched Mrs. Culp's report or the teletype description. The only further evidence offered was Mrs. Culp's testimony that when she was called to the police station for the lineup, another officer told her that a suspect had been picked up "that matched the description of the person that I had said assaulted me."

After being stopped, defendant's car was impounded and he was taken to a police station, where Mrs. Culp identified him in a lineup. Mrs. Culp's testimony at the suppression hearing related solely to the circumstances of that identification proceeding, which is challenged before us not for suggestiveness or unfairness, but as the product of an arrest without probable cause.

The hearing Judge ruled that suppression of the lineup identification was not required because the police had probable cause for the arrest, a conclusion he supported by finding that the arresting officer "testified that the defendant matched the description of the suspect in the assault." In fact, the only hearing testimony of the officer concerning his observation of the occupant of the car was that there was a laceration of his right index finger.

Just prior to the commencement of trial, the court ruled, in response to defendant's motion pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, that his credibility could be impeached with proof of his prior conviction for sexual abuse and proof of the facts underlying his adjudication as a youthful offender on an assault charge. Thereafter, defendant, who did not testify at trial, was found guilty of kidnapping in the second degree. The primary evidence against him at the trial was Mrs. Culp's testimony identifying him as her assailant, which was bolstered by her testimony that she had selected him in a lineup on the day after the crime.

On defendant's appeal to the Appellate Division, 92 A.D.2d 1063, 462 N.Y.S.2d 275, the entire court agreed that the evidence was sufficient to establish kidnapping in the second degree by abduction. On the other issues the court was split. The majority, one Justice dissenting, upheld the Trial Judge's suppression ruling on the alternative theories that defendant consented to accompany the officers to the police station, but that, even if he had not, there was probable cause for his arrest, and rejected defendant's argument that the Trial Judge's Sandoval ruling was erroneous.


To establish either kidnapping in the first degree (Penal Law, § 135.25) or kidnapping in the second degree (Penal Law, § 135.20), it must be established that the person accused abducted another person. "Abduct" is defined by subdivision 2 of section 135.00 of the Penal Law as "to restrain a person with intent to prevent his liberation by * * * using or threatening to use deadly physical force", and under subdivision 11 of section 10.00 of the Penal Law "deadly physical force" means "physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury."

The theory of the prosecution in the present case is that when defendant stated to the victim that he had a gun in his pocket he thereby threatened the use of deadly physical force. Defendant argues, however, that the proof was insufficient because it must be shown that the threat made was capable of present realization and there was no evidence at trial that he actually possessed a gun, much less an operable gun.

The plain language of the statute requires rejection of defendant's argument. Depending on how it is used, even a normally innocuous item may constitute "deadly physical force" or may be a "dangerous instrument" * (see People v. Carter, 53 N.Y.2d 113, 440 N.Y.S.2d 607, 423 N.E.2d 30 [rubber boots]; People v. Cwikla, 46 N.Y.2d 434, 442, 414 N.Y.S.2d 102, 386 N.E.2d 1070 [handkerchief used as a gag] ). In contrast, the threat presented by a gun does not depend to any significant extent on the manner in which it is used. So long as a gun is operable, it constitutes deadly physical force, and a threat to use a gun, such as was made here, can only be understood as a threat that the weapon is operable. In short, on the facts of this case, the evidence was sufficient to establish that defendant restrained Mrs. Culp by "threatening to use deadly physical force."


Defendant's pretrial motion to suppress Mrs. Culp's lineup identification as the fruit of an unlawful arrest cast the burden on the prosecution to come forward with evidence establishing probable cause for the arrest (People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709; People v. Malinsky, 15 N.Y.2d 86, 91, n. 2, 255 N.Y.S.2d 850, 209 N.E.2d 694). The analysis required of a hearing Judge faced with deciding whether the People have met their burden is largely the same as that used by a magistrate in passing on an application for an arrest or search warrant (People v. Bouton, 50 N.Y.2d 130, 135, 428 N.Y.S.2d 218, 405 N.E.2d 699; People v. Boniface, 37 A.D.2d 728, 729, 323 N.Y.S.2d 876). In either instance, a prime requirement of the Fourth Amendment and the New York Constitution (art. I, § 12) is specificity: a particular description of "the place to be searched, and the person or things to be seized" (see United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621; Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238; People v. Nieves, 36 N.Y.2d 396, 400-402, 369 N.Y.S.2d 50, 330 N.E.2d 26).

Thus, an arrest warrant must contain "the name of the defendant to be arrested or, if such be unknown, any name or description by which he can be identified with reasonable certainty" (CPL 120.10, subd. 2; see Boose v. City of Rochester, 71 A.D.2d 59, 66, 421 N.Y.S.2d 740), and a search warrant must provide a description "essential to identification with certainty" (CPL 690.45, subd. 5). Where an arrest or search is made without a warrant, the reviewing court must be supplied with the description upon which the police acted and sufficient evidence to make its own independent determination of whether the person arrested or the item seized reasonably fit that description (People v. Brodie, 87 A.D.2d 653, 448 N.Y.S.2d 518). In other words, "the court must be presented with facts, not assurances", and "[s]ummary statements that the police had arrived at a conclusion that sufficient cause existed will not do" (People v. Bouton, 50 N.Y.2d 130, 135, 428 N.Y.S.2d 218, 405 N.E.2d 699, supra ).

It follows that when the police have acted on the basis of a teletype or radio bulletin the prosecution's burden is not discharged absent proof regarding the contents of the communication received. The reliability of the information conveyed may be assumed by the officer in the field (People v. Lypka, 36 N.Y.2d 210,...

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