People v. Jackson

• Decision Date: 03 January 1980
• Citation: 423 N.Y.S.2d 173,72 A.D.2d 149
• Parties: The PEOPLE of the State of New York, Appellant, v. James JACKSON, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 173

423 N.Y.S.2d 173

72 A.D.2d 149

The PEOPLE of the State of New York, Appellant, v. James JACKSON, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Jan. 3, 1980.

Norman A. Bloch, New York City, of counsel (Jerrold L. Neugarten, New York City, with him on the brief; Robert M. Morgenthau, Dist. Atty.), for appellant.

Vincent A. Apicella, New York City, of counsel (Philip R. Kaufman, New York City, with him on the brief; Apicella & Schlesinger, New York City, attys.), for defendant-respondent.

Before MURPHY, P. J., and KUPFERMAN, FEIN, SULLIVAN and ROSS, JJ.

SULLIVAN, Justice.

At approximately 11:45 p. m. on December 21, 1977, Wayne Batts approached Police Officer McGoldrick and Detective Grimes in the 28th precinct station house, and stated that a man had earlier that day fired three shots at him. Batts also said that he believed that his assailant, whom he knew, could be found in an apartment at 173 West 126th Street. Taking Batts with them, the officers, accompanied by fellow anti-crime officers Mesh and Lack, proceeded to that address. When they arrived Batts said he thought his attacker was in the basement apartment, the entrance to which was beneath the front stoop and two steps down from the sidewalk.

After knocking on the door, the officers were admitted by a Ms. Dillard, who, it was later determined, resided in the apartment, and was the girlfriend of Batts, as well as defendant's former wife. A number of other people were also in the apartment. While Detective Grimes was speaking with Ms. Dillard, a pay telephone in the rear of the apartment began to ring. Officer McGoldrick picked up the receiver and, without identifying himself, said "hello." The caller, a male, asked what was going on in the apartment, and also "asked for" several individuals. According to McGoldrick, the caller became "very loud and boisterous", shouted that "he was going to come over and shoot me and blow my head off", and then hung up, without identifying himself.

After reporting the threat to the other officers, McGoldrick left the apartment with Detective Grimes and the two men positioned themselves directly across the street from 173 West 126th Street. It was now past midnight. No other cars were parked in front of the building or in the immediate vicinity.

Approximately ten minutes later a car pulled up in front of 173 West 126th Street and came to an "abrupt" stop. The sole occupant, defendant, got out and walked toward the entrance to the basement apartment. McGoldrick and Grimes, with guns drawn, approached defendant from behind and identified themselves. Defendant stopped as he neared the steps leading to the door of the basement apartment, and turned toward them. McGoldrick stood back and covered Grimes, who walked up to defendant and asked him if he had a gun. Defendant said "yes." Reflexively, his hand moved toward his right leg. Grimes grabbed defendant's right front pants pocket, felt a gun, and removed it. While the officers handcuffed defendant, Batts and Officers Mesh and Lack exited the apartment and Batts identified defendant as his assailant.

Holding that the search could be justified only if it was incidental to a lawful arrest, the trial court granted defendant's motion to suppress because the arrest was not made until after the search and at the time of the seizure "there was no probable cause to arrest the defendant." We find that the police acted reasonably in stopping defendant and asking him whether he had a gun, and in subsequently seizing the gun which he admittedly possessed. Accordingly, we would reverse.

Preliminarily, we note that our decision, based, as it is, on the police officers' testimony, presumes that the suppression court credited their testimony, although the court did not make any factual finding to that effect, as is required. (See CPL 710.60(4), (6).) We are empowered to consider and determine the question of the officers' veracity. (See CPL 470.15(1), also People v. Davis, 51 A.D.2d 531, 378 N.Y.S.2d 412.) In the absence of any challenge to their credibility, either in the court's summary of the testimony, or in defendant's arguments during the hearing, we credit their testimony.

A seizure does not, Ipso facto, constitute an arrest. (See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Dunaway v. New York, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). There are three levels of justifiable police intrusion upon a citizen in a public place, short of an arrest, each in itself a form of seizure in which the person's liberty of movement is significantly interrupted. At the first level a police officer may approach for the purpose of requesting information; at the second and more intense level he has the common law right to inquire, which is "activated by a founded suspicion that criminal activity is afoot"; and at the third he has the statutory right to forcibly stop and detain a person when he entertains a reasonable suspicion that the person has committed, is committing, or is about to commit a felony or misdemeanor. (See People v. Santiago, 64 A.D.2d 355, 409 N.Y.S.2d 716, citing, generally, People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562.) Ancillary to the statutory right to detain is the officer's authority to frisk if he reasonably suspects that he is in danger of physical injury. (CPL 140.50(3).) Whether a particular seizure is reasonable "requires weighing the government's interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual's right to privacy and personal security. In conducting this inquiry we must consider whether . . . the action of the police was justified at its inception . . . and . . . reasonably related in scope to the circumstances which rendered its initiation permissible." (People v. Cantor, supra, 36 N.Y.2d 106, 111, 365 N.Y.S.2d 509, 514, 324 N.E.2d 872, 876, and citations therein.) "(T)he predicate established defines the scope of permissible police conduct." (People v. Stewart, 41 N.Y.2d 65, 66, 390 N.Y.S.2d 870, 871, 359 N.E.2d 379, 381.)

With these principles established, it seems clear that when the driver exited his car and headed directly to the entrance to the...