People v. Matera

• Decision Date: 12 March 1965
• Citation: 45 Misc.2d 864,258 N.Y.S.2d 2
• Parties: The PEOPLE of the State of New York, Respondent, v. Bruno Joseph MATERA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 2

258 N.Y.S.2d 2

45 Misc.2d 864

The PEOPLE of the State of New York, Respondent, v. Bruno Joseph MATERA, Defendant-Appellant.

Supreme Court, Appellate Term, First Department.

March 12, 1965.

Matthew H. Brandenburg, New York City, for appellant.

Frank S. Hogan, Dist. Atty., Eric A. Seiff, New York City, of counsel, for respondent.

Before GOLD, J. P., and CAPOZZOLI and HOFSTADTER, JJ.

PER CURIAM.

Judgment of conviction reversed on the law and on the facts and information dismissed. The court below erred in denying defendant's motion to suppress evidence seized without a warrant, without his consent and prior to his arrest which, indeed, was based upon possession of the articles obtained by the search. Defendant's response to a direction to empty his pockets during questioning by three special patrolmen who had apprehended him in a part of Bellevue Hospital to which the public has access and had then taken him to their one-door, one-room headquarters, cannot be deemed a search by consent under these circumstances. Neither can it be classified as incidental to a lawful arrest, as the arrest followed and was predicated solely upon the items thus revealed. The dissent intermingles testimony given at the trial with that elicited at the hearing upon the motion to suppress. This court is bound by the latter testimony, which contains nothing about an 'exposed bag which contained a syringe' or a 'syringe sticking out of his jacket pocket.'

GOLD and CAPOZZOLI, JJ., concur.

HOFSTADTER, J., dissents in dissenting memorandum herewith and votes to affirm.

HOFSTADTER, Justice (dissenting).

The Fourth Amendment condemns only those searches and seizures which are unreasonable. In his statement of the facts in his brief, counsel for appellant states the heart of this case as follows: 'While appellant was identifying himself, he opened his jacket and there was an exposed bag which contained the syringe'--which is the basis of this conviction. Again quoting defendant's counsel, defendant was searched 'because the police noticed a syringe upon the person of appellant sticking out of his jacket pocket.'

Defendant was arrested on December 9, 1963. The charges made in the complaining affidavit of the arresting officer dated December 10, 1963 were reduced on January 8, 1964 to a single charge under Penal Law, section 1747-b, of unlawful possession of barbiturates. On January 17, 1964, the District Attorney filed a three count superseding information, the second count, under Penal Law, section 1747-d, charging unlawful possession of the hypodermic syringe alluded to above; and defendant pleaded to the superseding information on that day.

The motion to suppress referred to in the majority opinion was heard on January 8, 1964 when the only charge before the court was under 1747-b (unlawful possession of barbiturates) not under 1747-d (unlawful possession of hypodermic instruments). Whether the syringe was unlawfully...