People v. Fulton
| Decision Date | 11 January 1993 |
| Citation | 593 N.Y.S.2d 53,189 A.D.2d 778 |
| Parties | The PEOPLE, etc., Appellant, v. Tyrone FULTON, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Leonard Joblove, and Anne C. Feigus, of counsel), for appellant.
Philip L. Weinstein, New York City (William B. Carney, of counsel), for respondent.
Before ROSENBLATT, J.P., and RITTER, COPERTINO and PIZZUTO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the Supreme Court, Kings County (Moskowitz, J.), entered January 23, 1992, which, after a hearing, granted in part those branches of the defendant's omnibus motion which were to suppress physical evidence and a statement made by him to law enforcement authorities.
ORDERED that the order is reversed, on the law, those branches of the defendant's motion which were to suppress physical evidence and a statement made by him to law enforcement authorities is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment.
At the suppression hearing, the arresting officer testified that during the evening of June 30, 1991, while on motor patrol, he heard radio transmissions originating from another police vehicle that a certain car was being sought concerning a reported shooting and menacing with a gun. The car was described as being a blue, four-door Toyota Camry, license plate 3JJ541, with the words "Spoiled Rotten" written on the side. The perpetrator was also identified as a man named "Tyrone" who had "dreads" (i.e., a dreadlock hairstyle). According to the officer, he returned to the precinct later that night and located the original complaint report, from which he gained further details as to the car and person sought, including that "Tyrone" was described, inter alia, as a Jamaican male black with a mustache, beard, and "dreads" who lived at 671 Decatur Street, Brooklyn, and was wearing a black tank top, blue hat and certain jewelry. He also was described as carrying a black, semi-automatic .45 pistol. The complainant had charged that this individual, earlier that day, fired a shot through a second floor apartment window and had threatened the complainant before. However, the record contains no proof that the complainant stated, or that the officer read or heard, that the shot had come from the pistol described by the complainant.
The officer then resumed patrol and drove to the area of 671 Decatur Street. He parked nearby and waited. A few minutes later he observed a Toyota Camry precisely matching the description he had received (except that the license number was 3JJ841) being driven down the street by a black male wearing dreadlocks; the officer followed and pulled it over. He approached and asked the driver, the defendant herein, for his name. When the defendant replied that his name was "Tyrone Fulton", the officer told him that someone had reported that he had a gun and asked him to get out of the car. The defendant exited the car, and moved towards the rear of the car.
The officer looked in the passenger compartment and saw what looked like a .45 caliber pistol between the gearshift console and the driver's seat. The officer seized the gun and arrested and handcuffed the defendant. The officer then searched the trunk under circumstances which were disputed at the hearing, and found a sawed-off rifle. The rifle jammed as the officer was trying to eject the bullets and the defendant stated that there were four rounds inside. It was later determined that the pistol was an imitation .45 caliber automatic, which was actually a BB gun, and the defendant was not charged with possession of a weapon based upon the BB gun. The hearing court suppressed the rifle and the statement.
The stop of the defendant's car and his subsequent arrest were legal. The car and driver matched the descriptions the arresting officer had both heard and read, and provided the basis for his actions (see, People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375,...
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