People v. Pinkney

• Decision Date: 21 December 1987
• Citation: 135 A.D.2d 748,522 N.Y.S.2d 653
• Parties: The PEOPLE, etc., Respondent, v. Marvin PINKNEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 653

522 N.Y.S.2d 653

135 A.D.2d 748

The PEOPLE, etc., Respondent, v. Marvin PINKNEY, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 21, 1987.

Gombiner & Avenia, New York City (Peter J. Avenia, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Carey L. Edelman, of counsel), for respondent.

Before BRACKEN, J.P., and RUBIN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zelman, J.), rendered December 20, 1982, convicting him of murder in the second degree, criminal possession of a weapon in the second 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 physical evidence and identification testimony.

ORDERED that the judgment is modified, on the law and the facts, by reversing the defendant's convictions of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, vacating the sentences imposed thereon, granting that branch of the defendant's motion which was to suppress certain physical evidence, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

As part of his omnibus motion, the defendant challenged the propriety of a police-arranged showup procedure which resulted in positive identifications by four witnesses to the crimes. We agree with the hearing court that, under the totality of the circumstances, the procedures employed were not so unnecessarily suggestive as to be conducive to an irreparably mistaken identification. Therefore, that branch of the defendant's omnibus motion which was to suppress this evidence was properly denied (see, e.g., People v. Logan, 25 N.Y.2d 184, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. denied 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513, rearg. dismissed 27 N.Y.2d 733, 314 N.Y.S.2d 542, 262 N.E.2d 680, rearg. denied 27 N.Y.2d 737, 314 N.Y.S.2d 1029, 262 N.E.2d 683; People v. Smith, 46 A.D.2d 639, 360 N.Y.S.2d 256, affd. 38 N.Y.2d 882, 382 N.Y.S.2d 745, 346 N.E.2d 546; People v. Digiosaffatte, 63 A.D.2d 703, 404 N.Y.S.2d 879, citing Neil v. Biggers, 409 U.S. 188, 193, 93 S.Ct. 375, 379, 34 L.Ed.2d 401).

The defendant further sought to suppress two guns which had been seized by the police as a result of a warrantless search of his vehicle. Under the facts of this case, the search was neither supported by probable cause nor justified by exigent circumstances or any other exception to the exclusionary rule (see, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; People v. Martin, 48 A.D.2d 213, 216, 368 N.Y.S.2d 342; see also, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Matter of Kwok T., 43 N.Y.2d 213, 401 N.Y.S.2d 52, 371 N.E.2d 814). Accordingly, the convictions for criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree are reversed.

However, the improper admission of the guns into evidence does not mandate reversal of the conviction for murder in the second degree since the admission in evidence of the murder weapon was harmless error in view of the other overwhelming evidence on that charge. Four witnesses testified at the trial that they were in the parking lot of a shopping mall when they heard the glass door of a liquor store shatter and saw a man, later identified as the defendant, running out of the store. All had...