People v. Grant

• Decision Date: 24 April 2012
• Citation: 94 A.D.3d 1139,942 N.Y.S.2d 223,2012 N.Y. Slip Op. 03216
• Parties: The PEOPLE, etc., respondent, v. Edwin GRANT, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03216
94 A.D.3d 1139
942 N.Y.S.2d 223

The PEOPLE, etc., respondent,
v.
Edwin GRANT, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 24, 2012.

[942 N.Y.S.2d 224]

Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS and ROBERT J. MILLER, JJ.

[94 A.D.3d 1139] Appeal by the defendant from a judgment of the Supreme Court, Kings County

[942 N.Y.S.2d 225]

(Del Giudice, J.), rendered February 27, 2008, convicting him of attempted murder in the second degree, attempted aggravated assault upon a police officer, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Leventhal, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence and identification testimony.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.

On May 10, 2006, at approximately 2:15 P.M., Dennis Moore arrived outside a construction site located on Carroll Street in Brooklyn, carrying a large amount of cash, as he routinely did, in order to pay his workers. The defendant, acting with another, demanded Moore's money. When Moore refused, the defendant and his accomplice pistol-whipped and shot him. An off-duty detective, Larry Young, intervened, announcing that he was a police officer and displaying his badge. The defendant and his accomplice shot at Young, and Young returned fire. At trial, Young testified that he believed that one of his shots struck one of the assailants. Young observed the defendant and his accomplice flee the scene of the shooting in a burgundy Nissan Maxima with out-of-state license plates. Young noted that the part of the license-plate number he was able to observe was “P42.” Another witness reported that the car had a Florida license plate. A search of out-of-state databases revealed that a burgundy Nissan Maxima, with Florida license-plate number “P424TG,” was registered to the defendant's mother. Approximately 15 minutes after the defendant and his accomplice fled the scene of the shooting, the defendant entered Kings County Hospital complaining of a gunshot wound. While at the hospital only 20 to 30 minutes after the shooting, Young identified the defendant as one of the shooters. The defendant's blood-stained clothing, which the hospital had secured, was left on a nurses' station in the emergency room. Upon the request of the [94 A.D.3d 1140] police, medical personnel gave the defendant's clothing to the police. It was determined that ballistic evidence found at the crime scene came from the same weapon as a discharged shell found in the defendant's pants. Moreover, blood was found inside the Nissan Maxima, and a sample of the defendant's DNA matched that blood.

Contrary to the defendant's contention, the Supreme Court properly denied suppression of his blood-stained clothing ( see People v. Quinones, 247 A.D.2d 216, 218, 670 N.Y.S.2d 1 ; People v. Lewis, 243 A.D.2d 256, 663 N.Y.S.2d 9). Since the defendant's clothing was laying on a nurses' station in an emergency room, the clothing was openly visible ( see People v. Milaski, 62 N.Y.2d 147, 154 n. 1, 476 N.Y.S.2d 104, 464 N.E.2d 472; People v. Alberti, 111 A.D.2d 860, 490 N.Y.S.2d 261; People v. Robinson, 115 A.D.2d 411, 412, 496 N.Y.S.2d 39; LaFave, Search and Seizure § 2.2[a][4th ed.]; Katz and Shapiro, 1–15 New York Suppression Manual § 15.01 [Bender rev ed.] ). Moreover, the police had probable cause to seize the defendant's clothing as evidence of a crime ( see Soldal v. Cook County, 506 U.S. 56, 66, 113 S.Ct. 538, 121 L.Ed.2d 450; Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 94 L.Ed.2d 347; Payton v. New York, 445 U.S. 573, 586–587, 100 S.Ct. 1371, 63 L.Ed.2d 639). The defendant had reported suffering a gunshot wound, Young had identified him as one of the shooters, and Young believed that he had

[942 N.Y.S.2d 226]

shot the defendant during the...