People v. Gustafson
| Decision Date | 05 April 1985 |
| Parties | PEOPLE of the State of New York, Respondent, v. Russell E. GUSTAFSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert Isaac, Olean, for appellant.
Levant M. Himeline, III, Little Valley, for respondent.
Before HANCOCK, J.P., and CALLAHAN, DENMAN, GREEN and O'DONNELL, JJ.
Defendant argues on appeal from his conviction for criminal possession of a forged instrument arising from his use of a forged prescription that the statements he gave at the police station should have been suppressed as the fruit of his arrest without probable cause. We reject the People's contention that defendant failed to preserve the issue. Although his motion papers did not contain sworn allegations of fact relating to the matter (see CPL 710.60[1] ), defendant alleged in his motion papers that the arrest was not based on probable cause and at the Huntley hearing cross-examined the arresting officer on the issue. Accordingly, we address the issue on the merits.
At the Huntley hearing the arresting officer testified that on the day preceding the arrest he went to the pharmacy in response to a call that a man was there with a forged prescription. By the time he arrived at the pharmacy, the man had left; the pharmacist gave him a description, however. The next day he received a call that the man had returned to the pharmacy. When the officer arrived, the pharmacy clerk pointed defendant out to him as the one with the forged prescription. Defendant was acting "furtive". In the officer's opinion, he matched the description the pharmacist had given him the day before. The officer approached defendant and asked him his name and what he was doing there, whereupon defendant refused to answer, became "evasive" and tried "to work his way towards an exit." At this point the officer had probable cause to arrest defendant for criminal possession of a forged instrument. However, he arrested defendant not for criminal possession of a forged instrument but for obstructing governmental administration, a crime for which concededly a proper arrest could not have been made. After the arrest the pharmacist gave the officer the prescription and bottle. At the police station, after receiving several Miranda warnings and after speaking with other officers, defendant gave the statements in issue.
The People contend on appeal and we agree that at the time of the apprehension there was ample ground to arrest for criminal possession of a forged instrument. The question is whether the arrest, because it was...
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