People v. K.

• Decision Date: 21 July 1969
• Citation: 32 A.D.2d 1049,305 N.Y.S.2d 975
• Parties: The PEOPLE, etc., Respondent, v. Eugene K. K., Jr., (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 975

305 N.Y.S.2d 975

32 A.D.2d 1049

The PEOPLE, etc., Respondent, v. Eugene K. K., Jr., (Anonymous), Appellant.

Supreme Court, Appellate Division, Second Department.

July 21, 1969.

Judgment of the County Court, Nassau County, rendered September 16, 1968, affirmed. No opinion.

CHRIST, Acting P.J., and BENJAMIN and KLEINFELD, JJ., concur.

MARTUSCELLO, J., dissents and votes to reverse the judgment and remit the case to the County Court for further proceedings not inconsistent with the following memorandum in which MUNDER, J., concurs:

Defendant appeals from a judgment of the County Court, Nassau County, adjudging him a youthful offender, on his plea of guilty, and sentencing him under article 9 of the Mental Hygiene Law to an indefinite period not to exceed 36 months in the care and custody of the Narcotic Addiction Control Commission. The sole issue raised by appellant is whether his pretrial motion to declare a search invalid and to suppress evidence was properly denied after a hearing. The facts as adduced at the hearing are as follows: As a result of an anonymous telephone call to Police Headquarters, four police officers proceeded to Dix Lane and Parsons Drive in the Town of Hempstead, at approximately 1:30 P.M. on February 2, 1968. The police were allegedly informed that there were four suspicious men in that area. When they arrived, two of the officers stopped four men and asked them to identify themselves and state their business in the area. A police sergeant ordered one of the men to remove his hand from his pocket. When this was done an open knife was produced. The man was searched and a brown manila envelope containing marijuana was taken from him. Defendant and the other men were then ordered to empty their pockets. When defendant complied with this order, three brown manila envelopes were produced and it was later ascertained that they contained marijuana. Defendant was Then arrested and a thorough search of his person was made. The hearing court concluded that the patrolman had sufficient probable cause to suspect that crime was being committed and that the search was a lawful and incidental part of a proper arrest. Section 180--a of the Code of Criminal Procedure, the 'Stop and Frisk Law', provides:

' § 180--a. Temporary questioning of persons in public places; search for weapons

'1. A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or any of the offenses specified in section five hundred fifty-two of this chapter, and may demand of him his name, address and an explanation of his actions.

'2. When a police officer has stopped a person for questioning pursuant to this section and reasonably suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. If the police officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.'

Under this statute it is clear that there is no justification for a search under subdivision 2 unless the officer has a reasonable suspicion that a felony or any of the offenses specified in section 552 of the Code of Criminal Procedure has been committed, is being committed or is about to be committed, and after stopping the suspect the officer has reasonable suspicion that he is in danger of life or limb. Accordingly, if the requisites of subdivision 1 are not met, a search may not be made. Furthermore, even if the requisites of subdivision 1 are met, the search may not be made unless the officer reasonably suspects that he is in danger of life or limb. I am of the opinion that under the facts at bar the requirements of subdivision 1 were not met and accordingly, since the officers did not have reasonable suspicion to stop defendant under subdivision 1 of section 180--a of the Code of Criminal Procedure, the detention was illegal and the evidence produced by the ensuing search should have been suppressed. The facts at bar are to be contrasted with those in People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581 where the police were informed by an anonymous telephone call that there was a white male youth at a certain location who had a loaded 32-calibre revolver in his left-jacket pocket. The caller also stated that the youth was 18 years of age, had blue eyes and blond hair and was wearing chinotype pants. On the basis of such information an officer proceeded to the location where he observed the defendant from across the street. He further observed that the defendant perfectly matched the description given and that he was standing in the middle of a group of children. The officer thereupon crossed the street, took the defendant by the arm, put him against the wall and took a revolver out of his left-hand jacket pocket. On these facts the Court of Appeals held that the search was valid under section 180--a. The court noted that the applicability of that statute was divided into two stages: the legality of the detention and the legality of the frisk (People v. Peters, 18 N.Y.2d 238, 242, 273 N.Y.S.2d 217, 219 N.E.2d 595, affd. 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917). As to the...