People v. Peters

• Decision Date: 25 January 1988
• Citation: 523 N.Y.S.2d 918,136 A.D.2d 750
• Parties: The PEOPLE, etc., Respondent, v. Christopher PETERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 918

523 N.Y.S.2d 918

136 A.D.2d 750

The PEOPLE, etc., Respondent, v. Christopher PETERS, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 25, 1988.

Lipsitz, Green, Fahringer, Roll, Schuller & James, New York City (Herald Price Fahringer and Diarmuid White, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Michael O'Brien, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.), rendered January 3, 1986, convicting him of arson in the first degree, attempted murder in the second degree, robbery in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

In the early morning hours of July 21, 1985, a taxicab driver was robbed by two men who then set fire to his cab with a Molotov cocktail and fled.

The following morning, Police Officer Philip Insardi pulled over an automobile in which the defendant was a passenger for traffic violations. While the officer was conducting an inquiry into the status and ownership of the vehicle which ultimately revealed that it had not been stolen, several additional police units arrived on the scene to render assistance. Officer Insardi testified at the pretrial hearing that he "was informed by one of the other officers that responded that the vehicle that [he] had stopped and the two occupants of that vehicle fit the description of a vehicle that was used in a robbery that had occurred in the past". Officer Insardi thereafter arrested the defendant and the driver of the automobile, his codefendant.

The defendant's argument that probable cause for his arrest did not exist, as evidenced by the arresting officer's testimony that, inter alia, he placed the defendant in custody in order to conduct a further investigation into the ownership of both the vehicle and a taxi meter which was seen lying on the rear floor of the car and that the defendant was not under arrest for any specific charge at the time is without merit. As this court held in People v. Lopez, 95 A.D.2d 241, 242, 465 N.Y.S.2d 998, "judicial evaluation of police action must be based on objective criteria and not an officer's subjective view of his right to make an arrest". Therefore, Officer Insardi's subjective observations that he arrested the defendant for, inter alia, further investigation into the ownership of the taxi meter, which would clearly not constitute a proper basis for the arrest in the absence of evidence that the defendant, a passenger in the car, had physical possession or otherwise exercised dominion or control over the meter (see, Penal Law § 10.00[8]; cf., Penal Law §§ 220.25, 265.15), does not militate against a finding that...