People v. Rosen
| Decision Date | 08 July 1985 |
| Citation | 112 A.D.2d 253,491 N.Y.S.2d 701 |
| Parties | The PEOPLE, etc., Appellant, v. Edward ROSEN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
John J. Santucci, Dist. Atty., Kew Gardens (Alan Zuckerbrod, Kew Gardens, of counsel), for appellant.
Jerald Levine, Jackson Heights, for respondent.
Before MOLLEN, P.J., and BRACKEN, NIEHOFF and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the Supreme Court, Queens County, dated May 24, 1984, which granted those branches of the defendant's omnibus motion which sought suppression of physical evidence and statements allegedly made to law enforcement officers.
Order reversed, on the law and the facts, and the aforementioned branches of the motion to suppress denied.
While alone on foot patrol at approximately 8:45 A.M., Police Officer George Field heard a voice coming from a nearby parking lot. Officer Field saw a man (the complainant) standing next to the driver's side of a parked automobile. The complainant appeared to be "very excited". The officer also saw a second man (the defendant) seated in the driver's seat of the automobile.
Without unholstering his weapon, Officer Field entered the parking lot. The automobile in question was facing the officer and he could see the defendant "bent down over the steering wheel". He was unable to see the defendant's hands. The defendant exited from the parked automobile and, with the complainant, walked in the direction of the approaching officer. The complainant informed the officer that "that man just pulled a gun on me". Without first making inquiry of the defendant, Officer Field "put [the defendant] against the car and * * * searched him", i.e., he "patted the exterior of [the defendant's] clothing"; the officer did not "go into" the defendant's pockets. Officer Field "frisked" the defendant because "I was in fear of immediate danger to me and [the complainant]".
As a consequence of the pat down, Officer Field discovered an empty holster strapped to the defendant's ankle. The defendant stated that he did not have the gun. Officer Field then asked the complainant, "did [the defendant] actually pull a gun on you, are you sure", to which the complainant replied, . The officer told the defendant "to remain where he was". Officer Field then entered the parked automobile from the driver's side and searched the area where the defendant was previously seated. The officer found a .38 caliber Colt revolver underneath the driver's seat. When asked by the officer, the defendant stated that he did not have a permit for the gun. Officer Field handcuffed the defendant and advised him of his constitutional rights. The defendant stated that he was willing to answer any questions without an attorney present.
No questioning occurred until some 30 minutes later when the defendant arrived at the 107th precinct. Officer Field asked the defendant "where he got the gun"; the latter replied that "he got it from a previous tenant or something". The officer also recovered a "replica detective shield" from the defendant, which he said "he had gotten * * * from a friend of his that was retired from the police department".
On the basis of the foregoing, Criminal Term granted those branches of defendant's omnibus motion which sought suppression of physical evidence and statements. The People have appealed (see, CPL 450.20[8], 450.50).
We conclude that the police had probable cause both to arrest the defendant and search his parked automobile. Officer Field was approached by a citizen-informant (People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227) who informed him that the defendant had "just pulled a gun" on him (see, People v. Dowling, 44 N.Y.2d 999, 408 N.Y.S.2d 340, 380 N.E.2d 171; People v. Igneri, 105 A.D.2d 755, 481 N.Y.S.2d 407; People v. Cabral, 91 A.D.2d 944, 458 N.Y.S.2d 559, appeal dismissed 59 N.Y.2d 704, 463 N.Y.S.2d 439, 450 N.E.2d 245). The defendant was lawfully frisked (see, People v. Green, 35 N.Y.2d 193, 360 N.Y.S.2d 243, 318 N.E.2d 464), and after discovering an empty holster strapped to the defendant's ankle (see, People v. Samuels, 50 N.Y.2d 1035, 431 N.Y.S.2d 694, 409 N.E.2d 1368, cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247),...
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