People v. Parson

• Decision Date: 17 April 2012
• Citation: 2012 N.Y. Slip Op. 02813,94 A.D.3d 577,944 N.Y.S.2d 18
• Parties: The PEOPLE of the State of New York, Respondent, v. David PARSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

94 A.D.3d 577

944 N.Y.S.2d 18

2012 N.Y. Slip Op. 02813

The PEOPLE of the State of New York, Respondent,

v.David PARSON, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

April 17, 2012.

Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.

TOM, J.P., CATTERSON, RICHTER, ABDUS–SALAAM, ROMÁN, JJ.

Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression hearing; Charles H. Solomon, J. at jury trial and sentencing), rendered July 14, 2009, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to a term of 3 1/2 years, unanimously affirmed.

The hearing court properly denied defendant's suppression motion. An identified citizen witness waved to the police, pointed to defendant, and told an officer that defendant had a firearm. The officer testified that this witness, and a child who was a passenger in the witness's car, each displayed a frightened demeanor. Under the circumstances, the officer could infer that the witness was speaking from personal knowledge ( see e.g. People v. Ransdell, 254 A.D.2d 63, 680 N.Y.S.2d 202 [1998],lv. denied92 N.Y.2d 1037, 684 N.Y.S.2d 502, 707 N.E.2d 457 [1998] ).

Accordingly, the officer had, at least, reasonable suspicion to justify a stop and frisk. Immediately after a frisk failed to reveal the presence of a weapon, the witness told the officer that the weapon was in a nearby dumpster. The police immediately searched the dumpster, found a pistol, arrested defendant, and recovered cartridges from his pocket.

Defendant argues that at the moment the officer frisked defendant and failed to find a weapon any justification for detaining defendant dissipated. Even assuming defendant was detained during the brief interval between the frisk and the witness's statement about the dumpster, a brief investigatory detention was reasonableunder the circumstances ( see generally People v. Hicks, 68 N.Y.2d 234, 238–239, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986] ). The location of a deadly weapon was at issue, and it was reasonable to clarify the discrepancy between the witness's accusation and the results of the frisk.

The discovery of the pistol in the dumpster gave the officers probable cause to arrest defendant. Therefore, the cartridges were recovered during a lawful search incident to arrest.

The citizen witness, a caseworker for a foster care agency, testified at trial, but his child passenger, a client of the agency, did not. The witness testified at trial that the child pointed out of the car window while displaying an agitated demeanor, and that this caused the witness to turn around, look out the window, and see defendant pointing a weapon. Defendant raises several issues regarding this testimony and the nondisclosure of the child's identity.

The child's demeanor and conduct did not constitute a nonverbal hearsay declaration ( compare People v. Nieves, 67 N.Y.2d 125, 131, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986] ), because they were not intended to assert facts or convey information ( see Prince, Richardson on Evidence § 8–103 [Farrell 11th ed.]; see also People v. Salko, 47 N.Y.2d 230, 239, 417 N.Y.S.2d 894, 391 N.E.2d 976 [1979] ). At most, the child conveyed a direction to look out of the window.

In any event, even if the child's behavior constituted a nonverbal declaration, it was not offered for its truth. Instead, it was admissible “for the legitimate nonhearsay...