People v. Lemmons

Decision Date02 July 1975
Citation49 A.D.2d 639,370 N.Y.S.2d 243
PartiesThe PEOPLE of the State of New York, Respondent, v. Melvin LEMMONS et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Goldberger, Feldman & Breitbart, New York City (J. Jeffrey Weisenfeld, New York City, of counsel), for appellants.

Francis J. Vogt, Ulster County Dist. Atty. (Edward M. P. Greene, Kingston, of counsel), for respondent.

Before HERLIHY, P.J., and LARKIN, REYNOLDS, GREENBLOTT and SWEENEY, JJ.

MEMORANDUM DECISION.

Judgments, County Court, Ulster County (Mino, J.), rendered on June 28, 1974 and August 22, 1974, affirmed. No opinion.

HERLIHY, P.J., and LARKIN and REYNOLDS, JJ., concur.

GREENBLOTT and SWEENEY, JJ., concur in part and dissent in part in a memorandum by GREENBLOTT, J.

GREENBLOTT, Justice (concurring in part and dissenting in part).

These are appeals from judgments of the County Court of Ulster County, rendered June 28, 1974 in the cases of defendants Hardrick and Allen, and August 22, 1974 in the cases of defendants Lemmons and Doe * upon a verdict convicting each of the defendants of two counts of the crime of possession of a loaded handgun in violation of subdivision 2 of section 265.05 of the Penal Law.

On March 28, 1973, the defendants Lemmons, Hardrick, Allen and Doe were driving in an automobile on the New York State Thruway that was stopped for a speeding violation. In response to Trooper Emsing's request the driver, defendant Lemmons, produced a valid New York temporary registration certificate in his brother's name and a valid Michigan driver's license. As Trooper Emsing was making out the traffic citation at the patrol car, his partner, Trooper Askew, radioed for a computer check of the documents. The reply message was that Lemmons was wanted in Michigan on a fugitive warrant for a weapons violation. As a result of receiving that information, Lemmons was placed under arrest, handcuffed and put in the back seat of the patrol car. Trooper Askew then returned to the car Lemmons had been driving, and according to his testimony as found credible by the County Court in the course of a suppression hearing, he noticed through a window on the passenger side a handgun sticking out of defendant Doe's pocketbook. (Doe was the only female in the vehicle.) Doe, Hardrick and Allen were then arrested and a subsequent search revealed a second handgun in the pocketbook, and a machine gun and a quantity of heroin in the trunk.

Defendants' first contention on this appeal is that the motion to suppress the two handguns should have been granted. Since the defendants were acquitted of charges stemming from discovery of the machine gun and the heroin, the validity of the search of the trunk is not before us. Subsequent to the events above described, it was determined that the fugitive warrant against Lemmons had been withdrawn prior to March 28, 1973.

We do not agree with the trial court that the arrest of defendant Lemmons was valid. While the arresting officer did not act improperly in acting on the basis of information communicated to him by other police sources, 'the presumption of probable cause that originally cloaked that action disappears from the case' on a motion to suppress. '(T)he People must demonstrate that the * * * sending agency itself possessed the requisite probable cause to act.' (People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294.) This result is compelled by the decision in Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306. There, an arrest was based on information transmitted to the arresting officer by another police agency although the sending agency lacked probable cause. The arrest and subsequent search were invalidated and the case before us is indistinguishable. It was improper for the trial court to rely on People v. LaBelle, 37 A.D.2d 135, 322 N.Y.S.2d 746, for in that case the arresting officer had probable cause to effect an arrest independent of an invalid warrant.

We feel, however, that the seizure of the handguns was proper under the 'plain view' doctrine. As noted above, it has been determined as a matter of fact that the...

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9 cases
  • Allen v. County Court, Ulster County
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 29, 1977
    ...Appellees' convictions were affirmed by the Appellate Division, Third Department, People v. Lemmons, 49 A.D.2d 639, 370 N.Y.S.2d 243 (1975), two of the five judges dissenting in part, and by the New York Court of Appeals, People v. Lemmons, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 354 N.E.2d 836 (19......
  • v. Allen
    • United States
    • United States Supreme Court
    • June 4, 1979
    ...motion was denied, id., at 775-776, and the convictions were affirmed by the Appellate Division without opinion. People v. Lemmons, 49 A.D.2d 639, 370 N.Y.S.2d 243 (1975). The New York Court of Appeals also affirmed. People v. Lemmons, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 354 N.E.2d 836 (1976). ......
  • Albo v. State
    • United States
    • Court of Appeal of Florida (US)
    • October 29, 1985
    ...518, 430 N.E.2d 1282, 446 N.Y.S.2d 229 (1981); People v. Jones, 110 Misc.2d 875, 443 N.Y.S.2d 298 (Crim.Ct.1981); People v. Lemmons, 49 A.D.2d 639, 370 N.Y.S.2d 243 (1975); Commonwealth v. Millings, 317 Pa.Super. 235, 463 A.2d 1172 (1983); State v. Trenidad, 23 Wash.App. 418, 595 P.2d 957 (......
  • People v. Jones
    • United States
    • New York City Court
    • September 21, 1981
    ...consequences of an erroneous computer generated police alarm for a stolen automobile. Close, however, is People v. Lemmons, 49 A.D.2d 639, 370 N.Y.S.2d 243 (3d Dept. 1975), affd. on other grounds, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 354 N.E.2d 836 (1976), where an automobile which defendant was......
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