People v. Pacifico
| Decision Date | 04 August 1983 |
| Citation | 465 N.Y.S.2d 713,95 A.D.2d 215 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jason PACIFICO, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lawrence Hochheiser, New York City, of counsel (Kenneth J. Aronson, New York City, with him on the brief; Hochheiser & Aronson, New York City, attorneys) for defendant-appellant.
John Latella, New York City, of counsel (Amyjane Rettew, New York City, with him on the brief; Robert M. Morgenthau, Dist. Atty., New York City), for respondent.
Before SANDLER, J.P., and SULLIVAN, ROSS, CARRO and MILONAS, JJ.
The only issue is the propriety of the denial, after a hearing, of defendant's motion to suppress physical evidence. Subsequent to the hearing defendant pleaded guilty to criminal possession of a controlled substance in the third degree, and criminal possession of a weapon in the third degree, and was sentenced.
At about 6 p.m. on January 31, 1981, Police Officers Joseph and Kelly, in uniform, on motor patrol, responded to a report from the emergency radio dispatcher of a man with a gun in a black Chevrolet Corvette, parked across the street from the entrance to the St. Regis Hotel at 2 East 55th Street. Within minutes the officers parked at the corner of Fifth Avenue and 55th Street and began walking east on 55th Street toward the St. Regis. Across the street from the hotel they saw a black Chevrolet Corvette pulling out from a curbside parking space. With guns drawn the officers crossed the street and approached the Corvette on the passenger's side. As they did so, they saw a gun on the passenger's seat. Since the car doors were locked, the officers directed the driver, defendant, to stop the car and get out. When he failed to comply Officer Kelly ran around the back of the car to the driver's side.
Meanwhile another police officer, Detective Handy, who together with Officers Mullane and Mora had also responded, approached the Corvette on the driver's side, also with his gun drawn. As he did so, a man, pointing towards the other side of the street, came down the steps of the St. Regis yelling, "He's got a gun." Officer Mullane, trailing Detective Handy by a few feet, told the man to get back. When Detective Handy reached the Corvette, Officer Joseph signalled to him that there was a gun on the passenger's seat. Detective Handy banged on the window with his gun and ordered defendant out of the car. Defendant responded by opening the door to the driver's side. As soon as the car stopped rolling Detective Handy pulled him out of the car. Once defendant was removed from the car Officer Kelly seized the gun, a 9 mm. luger pistol. Defendant was arrested, handcuffed and taken to the police station, where he was searched. Two plastic bags containing a total of three and one-quarter ounces of cocaine were found in a jacket pocket. Defendant also had $3,209 in his possession.
Defendant testified in his own behalf. Admitting possession of the gun, cocaine and money he denied that the gun was on the passenger's seat, and claimed that it was concealed under the driver's seat from where one of the officers recovered it after he had been removed from the car. He testified further that he was under the influence of cocaine at the time and that the officers struck him with billy clubs before placing him under arrest.
It is undisputed that defendant's car, a 1981 Corvette, had tinted windows. Photographs were introduced to demonstrate that even with the tinted windows of the car closed a person standing next to a Corvette on the passenger's side could see a gun lying on the passenger's seat. As part of the hearing the court itself viewed a Corvette similar to defendant's and concluded that a person standing where Officer Joseph testified he stood when he first saw the gun could see the passenger seat. Notwithstanding, the court, while accepting the testimony of the police officers in all other respects, rejected their testimony as to the viewing of the gun. It also rejected defendant's story of being beaten, as well as his testimony that his car was parked and not pulling out from a space when the police approached. Despite its rejection of the People's argument that the seizure of the gun was justified by the "plain view" exception to the warrant requirement, the court, citing this court's decision in People v. Foster, 83 A.D.2d 282, 441 N.Y.S.2d 273, held that the police officers "acted within the law and reasonably in taking [the] gun." While we believe that the credible evidence at the hearing established that defendant's gun was in plain view, we also find that the police officers had probable cause to arrest defendant and to search both him and his car.
At the outset we note that the court did not offer any explanation as to why it rejected the officers' testimony concerning their initial observation of the gun. It did not cite any inconsistencies or confusion in their accounts; it credited the balance of their testimony; and even satisfied itself, by personally viewing a similar Corvette, that a person in Officer Joseph's position could, in fact, see the passenger seat. In addition, the area in which defendant's car was parked was well lit by street lights and the marquee of the St. Regis Hotel. Thus, it appears that the court was not troubled by any aspect of the officers' conduct but, rather, by the anomaly of a motorist leaving a gun exposed on the passenger seat of a car parked on a busy Manhattan street. Yet, defendant, by his own admission, was under the influence of cocaine, recently snorted, and which apparently caused an epileptic fit on his arrival at the station house. While, under ordinary circumstances, leaving an illegal firearm on a car seat might appear bizzarre, such an act was quite consistent with defendant's behavior that evening. 1
The only evidence of a hidden gun came from defendant. Since the court discredited the balance of his implausible version of the incident, we can discern no reason why it would accept his self-serving claim that he had hidden the gun under the seat. Nothing in the record indicates that this particular aspect of defendant's version was less fanciful than any other testimony he gave. Furthermore, his concession that he was high on cocaine and his deportment at the time of arrest and thereafter make it difficult to believe anything that he related regarding the incident. Significantly, the suppression court made no finding of fact as to where the gun was actually discovered. Since this court is empowered to make the findings that the suppression court failed to make (People v. Casado, 83 A.D.2d 385, 387, 444 N.Y.S.2d 920), we find that the gun was in open view on the front seat, as Officers Joseph and Kelly testified, and was seized by Officer Kelly after defendant was removed from the car.
It is quite possible, of course, that the court did not believe that the gun could be viewed through the tinted glass of the windows, but that once the car door was opened it could be seen in open view on the passenger's seat merely by peering into the car. Even defendant does not dispute that on the basis of the information received the officers had the right to approach him and make inquiries, order him out of the car, and frisk him if they felt that their safety was imperiled. (See People v. McLaurin, 43 N.Y.2d 902, 403 N.Y.S.2d 720, 374 N.E.2d 614, rev'g 56 A.D.2d 80, 392 N.Y.S.2d 1, on dissenting opn.) Since the court had properly found that the officers were justified in removing defendant from the car, such a minimal intrusion of defendant's privacy as peering into his automobile would not have been disproportionately intrusive, given the predicate for the officers' conduct. (People v. Simmons, 83 A.D.2d 79, 80, 443 N.Y.S.2d 378.) Thus, whether they observed the gun through the tinted windows, as claimed, or only after defendant had been removed from the car, the gun was properly seized.
Even assuming, arguendo, that the gun was hidden under the seat, suppression does not necessarily follow. Contrary to defendant's argument, a court need not suppress evidence simply because it discredits some of the testimony offered by the People in support of the legality of police conduct, as...
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