People v. Fabian
| Decision Date | 20 January 1987 |
| Citation | 126 A.D.2d 664,511 N.Y.S.2d 92 |
| Parties | The PEOPLE, etc., Respondent, v. Victor FABIAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (James Alexander Burke, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Andrea Shapiro, of counsel), for respondent.
Before THOMPSON, J.P., and WEINSTEIN, EIBER and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Groh, J.), dated May 22, 1985, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Di Tucci, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence seized from him pursuant to an arrest based on mistaken identity.
ORDERED that the judgment is affirmed.
The defendant was arrested in good faith by a police officer who reasonably believed him to be an individual being sought by the police for a homicide committed in the precinct in which the defendant was apprehended. The defendant was in fact the brother of the wanted individual. The police issued a "Wanted for Homicide" photograph, which was in the possession of the arresting officer at the time of the defendant's apprehension, and the photograph taken of the defendant at the precinct at the time of his arrest reveals a reasonable likeness between the two individuals.
Inasmuch as probable cause for the arrest of the homicide suspect is not in dispute, the officer's reasonable mistake in arresting the defendant does not invalidate the arrest (see, Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484). It was entirely proper for the police, who were acting upon the good faith belief that they were in the presence of a dangerous criminal, to have approached the defendant with guns drawn due to their reasonable fear for their own safety. As recognized by the Court of Appeals, "It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety" (People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645). The mere fact that the arresting officer later learned that he was mistaken about the defendant's identity is of no legal consequence (see, People v. Wright, 100 A.D.2d 523, 472 N.Y.S.2d 733; People v. Bertino, 93 A.D.2d 972, 461...
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...the cases relied upon by counsel in his motion, the only three that present similar situations are: People v. Fabian , 126 A.D.2d 664, 511 N.Y.S.2d 92 (2nd Dept. 1987) (homicide suspect, "entirely proper for the police who were acting on a good faith belief that they were in the presence of......
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...Trooper Tyler's mistaken identification of the knife as a switchblade would not invalidate the defendant's arrest (see, People v. Fabian, 126 A.D.2d 664, 511 N.Y.S.2d 92), provided "the facts and circumstances known to the arresting [trooper] would warrant a reasonable person, who possesses......
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People v. Archibald
...possible suspect does not require a contrary result (see, e.g., People v. Corso, 135 A.D.2d 551, 554, 521 N.Y.S.2d 773; People v. Fabian, 126 A.D.2d 664, 511 N.Y.S.2d 92). In any event, as the officer's initial approach toward the defendant was proper, the defendant's act of dropping the pa......