People v. Johnson

• Decision Date: 07 July 1983
• Citation: 59 N.Y.2d 1014,466 N.Y.S.2d 957,453 N.E.2d 1246
• Parties: , 453 N.E.2d 1246 The PEOPLE of the State of New York, Respondent, v. Thomas JOHNSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 957

466 N.Y.S.2d 957

59 N.Y.2d 1014, 453 N.E.2d 1246

The PEOPLE of the State of New York, Respondent, v. Thomas JOHNSON, Appellant.

Court of Appeals of New York.

July 7, 1983.

[59 N.Y.2d 1015] Allen A. Hans, New York City, for appellant.

[59 N.Y.2d 1016] Robert M. Morgenthau, Dist. Atty. (Curtis Edward Hall, Robert M. Pitler and David H. Steiner, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division 86 A.D.2d 165, 449 N.Y.S.2d 41 should be affirmed.

The search of defendant's shoulder bag, two feet away from him at the time of his arrest for a crime involving a gun, was valid for the reasons stated in the opinion of Justice Asch at the Appellate Division (see, also, People v. Smith, 59 N.Y.2d 454, 465 N.Y.S.2d 896, 452 N.E.2d 1224 [decided herewith] ). The questions asked of the defendant at the time of his arrest, although prior to the requisite warnings, were nevertheless permissible as they were asked to clarify a volatile situation rather than to elicit evidence of a crime (see People v. Huffman, 41 N.Y.2d 29, 390 N.Y.S.2d 843, 359 N.E.2d 353; cf. People v. Quarles, 58 N.Y.2d 664, 458 N.Y.S.2d 520, 444 N.E.2d 984, cert. granted 461 U.S. 942, 103 S.Ct. 2118, 77 L.Ed.2d 1299). Retrial of the defendant did not violate the double jeopardy clause when the court declared a mistrial of the first trial on the basis of the jury's deadlock after two days of deliberation (see Arizona v. Washington, 434 U.S. 497, 509-510, 98 S.Ct. 824, 832-833, 54 L.Ed.2d 717; People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134). The defendant's failure to request a charge pursuant to Allen v. United States 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 puts the court's failure to give such a charge beyond our review.

JASEN, Judge (concurring).

I agree that the order of the Appellate Division should be affirmed. I reach that conclusion, however, because I believe that a search of items within the defendant's immediate control prior to the arrest is justified by the probable cause that existed to make the arrest permissible. (See People v. Smith, 59 N.Y.2d 454, 465 N.Y.S.2d 896 [decided herewith] [Jasen, J., concurring].) Such an approach has not only been sanctioned by the Supreme Court, but alleviates the necessity of the courts second guessing the exact events which occurred and the order that they occurred in at the time of the arrest. A more certain standard, as the Supreme Court has recognized, will protect society's interest in assuring that the defendant's rights are protected while also assuring society's obvious interests in protecting its law enforcement officers and in expeditiously handling...