People v. Horowitz

• Decision Date: 07 December 1967
• Citation: 286 N.Y.S.2d 473,21 N.Y.2d 55,233 N.E.2d 453
• Parties: , 233 N.E.2d 453 The PEOPLE of the State of New York, Respondent, v. Bernard HOROWITZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 473

286 N.Y.S.2d 473

21 N.Y.2d 55, 233 N.E.2d 453

The PEOPLE of the State of New York, Respondent, v. Bernard HOROWITZ, Appellant.

Court of Appeals of New York.

Dec. 7, 1967.

Patrick M. Wall, New York City, for appellant.

Frank S. Hogan, Dist. Atty., (Laurence Leff, Jamaica, and Michael Juviler, New York City, of counsel), for respondent.

VAN VOORHIS, Judge.

The defendant pleaded guilty after his motion to suppress alleged illegally obtained evidence and an inculpatory statement made by himself had been denied. At the hearing, the arresting officer testified that he was informed by a lieutenant from the Criminal Investigation Bureau that an anonymous phone call had been received informing the lieutenant that a described man named Bernie Horowitz was then shaping up for work at the mail room of the New York Times Building and had in his possession a brown paper bag containing stolen United States savings bonds and pornographic literature; that he found the defendant at the mail room of the Times Building, identified himself as a police officer, asked the defendant his name and obtained a brown paper bag which the defendant carried containing United States savings bonds in the name of Anthony Cardone which were later identified as having been stolen. The Appellate Division held that the arresting officer would have been derelict in his duty if he had not pursued the information given him and that he had reasonable grounds to believe that he had these stolen bonds in his possession. Two dissenting Justices at the Appellate Division considered that there was lack of probable cause for the search and seizure and the arrest.

The defendant argues that the bonds were obtained from him by means of an illegal search and seizure and that their use as evidence should have been suppressed; that the statement made by him after arrest was prompted thereby and thus was obtained in violation of his constitutional rights and should also have been suppressed.

The majority opinion of the Appellate Division recognizes that the information concerning these stolen bonds was supplied by an anonymous informer, but adds (27 A.D.2d 367, 368, 279 N.Y.S.2d 536, 537) that 'when, in pursuing that information, he saw a man, having the exact physical attributes and carrying a brown paper bag, in the very place stated by the anonymous caller, Weber had personally verified every facet of the information given to him except whether the defendant had stolen bonds in the paper bag. And surely, with every other bit of the caller's information thus personally verified, Weber had reasonable grounds to believe that the remaining bit of the caller's information--that the defendant would have stolen bonds with him--was likewise true. (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.)'

The information supplied by the anonymous informer, every facet of which the majority opinion states had been verified by the detective was simply, as is stated in the brief for the People, that the stolen property was in the hands of a man named Bernie Horowitz who was presently shaping up for work in the mail room at the New York Times Building, that he had in his possession a brown paper bag containing stolen United States savings bonds and pornographic literature, that Horowitz was over six feet tall, weighed more than 200 pounds, and was known as 'Mr. Clean' because of the lack of hair on his head. It turned out that defendant answered that description and, when arrested, he proved to have the stolen United States savings bonds in the paper bag.

All that this amounts to is that the anonymous informer described the defendant correctly and had the right man as the sequel proved when he was found to have the stolen bonds in his possession. That is not the kind of evidence necessary to prove the reliability of the informer as required by People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263, cert. den. 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612; cf. Federal habeas corpus United States ex rel. Coffey v. Fay, 2 Cir., 344 F.2d 625; People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; People v. Quarles, 44 Misc.2d 955, 255 N.Y.S.2d 599, and similar decisions. In the McCray case, decided by the United States Supreme Court in 1967, our ruling in Malinsky was sustained to the extent of ruling that the Roviaro case did not require disclosure of the name of the informer, but in McCray the reliability of the informer was shown by testimony of police officers that during one to two years they had known the informant, and that he had frequently furnished accurate information about narcotics activities which had led to many convictions. No similar evidence is in this record to support the reliability of this informer, which was demonstrated entirely by the fact that the man who was identified by the informer and arrested possessed the stolen property. That is not enough (Roviaro v. United States, supra; People v. Malinsky, supra).

The correctness of the 3 to 2 decision by the Appellate Division reopens the legal philosophy of the decision in People v. Defore, 242 N.Y. 13, 150 N.E. 585. There are those, including the writer of this opinion, who still believe that People v. Defore represented...