People v. Morgan

• Decision Date: 17 June 1964
• Citation: 21 A.D.2d 815,251 N.Y.S.2d 505
• Parties: The PEOPLE of the State of New York, Respondent, v. James MORGAN and Lavell Hartwell, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 505

251 N.Y.S.2d 505

21 A.D.2d 815

The PEOPLE of the State of New York, Respondent, v. James MORGAN and Lavell Hartwell, Appellants.

Supreme Court, Appellate Division, Second Department.

June 17, 1964.

Harry Blum, Brooklyn, for appellant.

Leonard Rubenfeld, Dist. Atty., White Plains, for respondent; James J. Duggan, White Plains, of counsel.

Before BELDOCK, P. J., and UGHETTA, KLEINFELD, RABIN and HILL, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant Morgan from a judgment of the County Court, Westchester County, rendered August 7, 1962 after a jury trial (jointly with his codefendant Hartwell), convicting him of grand larceny in the first degree and of felonious possession of a weapon, and imposing sentence; and appeal by defendant Hartwell from a judgment of said court, rendered August 15, 1962, convicting him of burglary in the second degree, grand larceny in the first degree, unlawful possession of a weapon, and of unlawful possession of burglars' tools, and imposing sentence.

Judgments affirmed.

About 4 A.M. on June 29, 1961, both defendants were placed under arrest on Saw Mill River Road for speeding and driving without a license, and were thereafter taken to the police headquarters in the Town of Greenburgh, where they arrived about 4:30 A.M.

When the defendants got out of their car at the police headquarters, the police officers noticed that defendants' pockets were bulging. In the headquarters, the defendants emptied their pockets of large quantities of money. A few minutes later, defendants' car was searched; more money, bank deposit slips, two fully loaded guns and a screw driver were

In our opinion, a second arrest of the defendants occurred (the second arrest being for the crimes of which they were subsequently convicted), at the time of the detention of defendants in police headquarters. Probable cause existed for the second arrest by reason of all the events preceding defendants' coming to headquarters and the emptying of their pockets of large quantities of money, which made the search of their persons and their automobile incident to that arrest. This case is thus distinguished from Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, where the arrest was for vagrancy and the search was remote in time and place from the arrest.

Hence, in the case at bar we hold that there were two separate arrests and that the legal search was incidental to the second arrest.

It is also our opinion that the various counts in the indictment were properly joined (People v. Manasek, 20 A.D.2d 661, 246 N.Y.S.2d 567).

BELDOCK, P. J., and UGHETTA, KLEINFELD and HILL, JJ., concur.

RABIN, J., dissents and votes to reverse the judgments and to grant a new trial as to both defendants, with the following memorandum:

Although, on the record before us, there can be no question that the defendants' guilt was established beyond a resonable doubt, it is my view that reversal is compelled by reason of the admission at the trial of evidence which was obtained as a result of an unlawful search and seizure in deprivation of the defendants' rights under the Fourth Amendment to the United States Constitution (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081).

The automobile in which the defendants were found was searched without a warrant after defendants had been arrested, taken to the police station and placed in custody, and while the automobile was at rest in the parking lot or garage at the police station. In my opinion, such search was unlawful and, hence, the evidence thus obtained was rendered inadmissible against them upon the trial (cf. People v. Vitagliano, 21 A.D.2d 677, 249 N.Y.S.2d 968).

Such a conclusion is now mandated by the recent decisions of the Supreme Court of the United States (Preston v. United States, 376 U.S. 364, 84 S.Ct. 881; Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856). In those cases it was held that a search which is remote in...