People v. Fisher

• Decision Date: 27 October 1983
• Citation: 97 A.D.2d 651,469 N.Y.S.2d 187
• Parties: The PEOPLE of the State of New York, Respondent, v. Howard FISHER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 187

469 N.Y.S.2d 187

97 A.D.2d 651

The PEOPLE of the State of New York, Respondent, v. Howard FISHER, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 27, 1983.

Penelope D. Clute, Plattsburgh, for appellant.

Joseph W. Kelley, Dist. Atty., Plattsburgh (Valerie Friedlander, New York City, of counsel), for respondent.

Before MAHONEY, P.J., and SWEENEY, MAIN, MIKOLL and YESAWICH, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Clinton County, rendered March 1, 1982, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree and criminal possession of marihuana in the fourth degree.

On January 21, 1981, defendant attempted to cross the United States border from Canada. At the United States Customs station in Champlain, Clinton County, New York, he was directed from the primary checkpoint to a secondary inspection area where his car was searched. The customs inspector discovered a .25 caliber handgun and ankle holster in the glovebox; a clip for the gun containing eight rounds of ammunition and 10 loose rounds were found in the pocket of a coat on the front seat; and 114.5 grams of marihuana and hashish were uncovered in various locations about the vehicle. A State trooper who had been summoned by the customs authorities arrested defendant and issued Miranda warnings to him. Defendant responded that he understood his rights and would answer questions without an attorney. However, when the officer asked defendant if the pistol was his, defendant merely shrugged his shoulders and the officer discontinued questioning him. Approximately one-half hour later and after arrival at the Chazy State Police substation, an investigator with the Bureau of Criminal Investigation, after receiving affirmative responses from both the arresting trooper and defendant as to whether the latter had been advised of his rights, asked defendant about the gun, the marihuana and the ammunition. Defendant acknowledged that they belonged to him.

The indictment presented to the Grand Jury was accompanied by a special information accusing defendant of having been previously convicted of armed bank robbery. Because of this conviction, his indictment on April 9, 1981 was for, inter alia, criminal possession of a weapon in the third degree instead of the fourth degree.

Prior to trial, defendant's challenge to the panel of prospective jurors, on the ground that the selection process discriminated against youth, was considered and properly denied for defendant failed to establish a purposeful or systematic discrimination by the jury commissioner of any distinctive group or class (see People v. Parks, 41 N.Y.2d 36, 390 N.Y.S.2d 848, 359 N.E.2d 358). Also denied, and rightly so, was defendant's motion to suppress the gun, ammunition and marihuana on the ground that they were obtained in violation of defendant's Fourth Amendment rights. It is urged that defendant's rights in this respect were violated by the customs officials when, without probable cause, they searched him. Border searches, since before the adoption of the Fourth Amendment, have been considered reasonable by the single fact that the person has entered our country from outside (U.S. v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617). Moreover, referring motorists selectively to a secondary inspection area is an intrusion of sufficiently minimal significance that no particularized reason need exist to justify it (U.S. v. Martinez-Fuerte, 428 U.S. 543, 563, 96 S.Ct. 3074, 3085, 49 L.Ed.2d 1116).

Similarly unpersuasive is the contention that the incriminating statements defendant made to the investigator were illegally admitted into evidence because defendant's shrug, an equivocal gesture at best which was made in response to the arresting trooper's inquiry as to whether the gun was his, effectively revoked defendant's earlier unambiguous and express waiver of his right to counsel (People v. Coles, 89 A.D.2d 471, 475, 455 N.Y.S.2d 653). Nor do we perceive any need for the investigator to further recite the Miranda warnings before beginning his interrogation. Not only had defendant voluntarily waived those rights just a short time before, but he had been in continuous custody with no reason to assume that he was other than the focal point of the investigation; it is hardly likely he forgot or no longer understood his rights (People v. Johnson, 49 A.D.2d 663, 665, 390 N.Y.S.2d 462, affd. 40 N.Y.2d 882, 389 N.Y.S.2d 347, 357 N.E.2d 1002).

The trial court's rejection of defendant's claim that Clinton County was without jurisdiction to indict and try defendant because the site of the crime was the United States-Canadian border within the Federal customshouse area must also be sustained. Pursuant to CPL 20.20,...