People v. Parker

• Decision Date: 12 September 1996
• Citation: 223 A.D.2d 179,648 N.Y.S.2d 430
• Parties: The PEOPLE of the State of New York, Appellant, v. Roy PARKER, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 430

648 N.Y.S.2d 430

223 A.D.2d 179

The PEOPLE of the State of New York, Appellant, v. Roy PARKER, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Sept. 12, 1996.

Penny Rosenberg, of counsel (Eleanor J. Ostrow, on the brief, Robert M. Morgenthau, District Attorney of New York County, attorney), for appellant.

Paul J. Angioletti, for defendant-respondent.

Before MILONAS, J.P., and ELLERIN, KUPFERMAN, TOM and MAZZARELLI, JJ.

TOM, Justice.

The issues presented on this appeal concern whether the trial court acted in excess of its authority when it orally dismissed the indictment after ruling at a Mapp hearing that the police had arrested defendant without probable cause and accordingly, suppressed the money found upon the defendant's person; and whether the People waived the provisions of CPL 210.45(1), which requires that a motion to dismiss an indictment be made "in writing and upon reasonable notice to the people," by failing to object to the dismissal in the hearing court.

On March 31, 1994, at approximately 3:10 AM, New York City Police Officers Dennis Morgano and James O'Sullivan observed defendant Roy Parker and co-defendant Knud Busby ¹ running on a deserted street to a waiting cab, where a third man was waving to them. After the three men entered the taxi, Officer O'Sullivan pulled his police cruiser in front of it, blocking its path.

The three men then exited the cab, and Officer O'Sullivan began following the individual who had been waving to the others, while Officer Morgano stopped the other two, one of whom was defendant and the other was Busby. Officer O'Sullivan asked the man he was following to stop, but he refused, exclaiming "I'm not with them. I'm not down with that. I have nothing to do with that." Officer O'Sullivan subsequently detained the individual, and while doing so, heard a radio run concerning "Al's Deli". Officer O'Sullivan knew Al's Deli was across the street and when he looked over, he noted that the security gate to the deli was partially open, the interior lights were on, and there was broken glass on the sidewalk.

Officer O'Sullivan motioned for Officer Morgano, who had detained defendant and Busby, to look across the street. Officer O'Sullivan then received a radio run that a security alarm had been tripped at Al's Deli, and he told Officer Morgano to handcuff defendant and Busby.

The two officers, after other units had arrived to hold the men in custody, went over to inspect the deli and found it in disarray. The padlock on the security gate and the window had been broken, there were spots of blood in various parts of the store, the cash registers were smashed and there was money on the floor. Upon returning outside, it was discovered that Busby's hand was bleeding and, after defendant and Busby were searched, broken shards of glass and fifty-one bloodstained bills were recovered from Busby and seven dollar bills were recovered from inside defendant's shirt sleeve.

At the conclusion of the Mapp hearing, the court granted the suppression motion and suppressed the money found on defendant's person, concluding that the arrests were not supported by probable cause. The court found that:

In this case the officers went on this great little frolic and stopped two men on the street, threw them up against a van, searched them, recovered nothing and now try to justify the search by saying, 'Oh, yes, they got a radio run about a deli and so that retroactively justified the search.' That is not the law, never was the law, never will be the law.

Justice Mogel, after announcing his ruling, ordered the defendant discharged, to which the prosecutor responded that he believed the People could still proceed to trial. The court responded: "No, you can't. I've just dismissed this. I'll keep the record open for thirty days and you'll decide whether you want to appeal. The indictment is dismissed." The People then requested that the court stay the dismissal for 30 days, presumably to allow them time to respond, which the court refused. The People appeal and we now reverse.

The People maintain that the trial court erred in dismissing the indictment, as the dismissal fit within none of the exclusive grounds delineated in CPL 210.20(1)(a)-(i). Defendant, however, contends that the indictment was properly dismissed pursuant to CPL 210.20(1)(h), which provides for the dismissal of an indictment where there "exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged." Defendant avers that the legal impediment is the fact that after suppression of the money, there was insufficient evidence to convict him.

In People v. Gordon, 88 N.Y.2d 92, 643 N.Y.S.2d 498, 666 N.E.2d 203, the Court of Appeals recently addressed this very issue. In Gordon, the trial court suppressed a suggestive show-up identification made by the robbery victim, and the defendant subsequently moved for dismissal of the indictment on the grounds, inter alia, that there now existed a legal impediment to defendant's conviction.

The Court of Appeals ruled that suppression of the identification did not constitute a "legal impediment" (id., at 97) to the conviction and distinguished its holding in People v. Swamp, 84 N.Y.2d 725, 622 N.Y.S.2d 472, 646 N.E.2d 774, by explaining that in Swamp, the subsequent laboratory test results effectively stripped the People of the only demonstrable evidence they had to prove that the substance...