People v. Hyter

• Decision Date: 06 March 1978
• Citation: 402 N.Y.S.2d 602,61 A.D.2d 990
• Parties: The PEOPLE etc., Appellant, v. Raymond HYTER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 602

402 N.Y.S.2d 602

61 A.D.2d 990

The PEOPLE etc., Appellant, v. Raymond HYTER, Respondent.

Supreme Court, Appellate Division, Second Department.

March 6, 1978.

Thomas R. Sullivan, Dist. Atty., Staten Island (George E. McVay, Asst. Dist. Atty., of counsel), for appellant.

William E. Hellerstein and Martin Erdmann, New York City (Robert S. Katz, New York City, of counsel), for respondent.

Before SHAPIRO, J. P., and COHALAN, MARGETT and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Richmond County, entered October 25, 1977, which, after a hearing, granted defendant's motion to suppress a quantity of marijuana seized in his apartment.

Order reversed, on the law, and motion to suppress denied.

The facts are not in dispute. On June 21, 1977, at about 8 A.M., Patrolman Donald Olson arrived at 52 Wayne Terrace in Staten Island, spoke with a Mrs. Mabra, her son Alan and two or three other people, and was told that a short while before "Raymond Hyter" had "threaten(ed)" them "with a revolver." Olson was also furnished with a description of Hyter and advised that he lived across the street at 53 Wayne Terrace. Olson noticed lacerations of "recent origin" about the head, ear and nose of Alan Mabra.

Olson proceeded to defendant's house, but received no response at the front door. He walked to the rear courtyard and, from a distance of 20 to 30 feet, observed defendant about 5 feet away from the back entrance to his house, which entrance leads to the kitchen area. He called out to defendant, who "turned" and entered the house.

Olson followed defendant inside (the door to the kitchen was open), confirmed he was "Raymond Hyter", advised him he was under arrest for "menacing with a gun and assault" and placed him in handcuffs. On the kitchen table, a few feet away from where he was standing, Olson saw and seized a quart jar of what appeared to be marijuana seeds, a quantity of loose marijuana, three cigarettes, a scale and a clip containing six .22 caliber bullets.

Criminal Term granted defendant's motion to suppress on the ground that the arrest was unlawful because there was no verification of the information given by the witnesses, nor proof of the "informer's" reliability.

It was error for Criminal Term to apply the same standards which should be applied to paid or anonymous informants, to ordinary citizens who had given their names to the police and who had just witnessed and indeed were the victims of a crime. The arresting officer had ample reason to credit the information given him since Mrs. Mabra and her son risked prosecution if their report was fabricated (see Penal Law, § 240.50; People v. Flannagan, 56 A.D.2d 289, 392 N.Y.S.2d 428; see, also, People v. Hicks, 38 N.Y.2d 90, 94, 378 N.Y.S.2d 660, 664, 341 N.E.2d 227, 230). Surely, where an identifiable private citizen reports that he has just been threatened with a gun, the responding officer cannot be expected to stand by and do nothing.

Based upon the information given to him, and in view of his own observation of Alan Mabra's lacerations, Officer Olson had probable cause to arrest defendant for the crimes of criminal possession of a weapon and menacing (see Penal Law, § 120.15), and possibly even assault, and defendant on this appeal does not contend otherwise. However, defendant does contend that the arrest was effected in violation of CPL 140.15 (subd. 4) and CPL 120.80 (subd. 4). The statutory mandate that, before entering premises to make an...