People v. Samuels

• Decision Date: 10 July 1979
• Parties: The PEOPLE of the State of New York, Respondent, v. Roland SAMUELS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 607

418 N.Y.S.2d 607

68 A.D.2d 663

The PEOPLE of the State of New York, Respondent, v. Roland SAMUELS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 10, 1979.

Ellen J. Schneider, New York City, of counsel (William E. Hellerstein, New York City, atty.), for defendant-appellant.

Gabrielle M. Rhodes, New York City, of counsel (Norman W. Barclay, New York City, with her on the brief; Robert M. Morgenthau, Dist. Atty.), for respondent.

Before KUPFERMAN, J. P., and BIRNS, FEIN, LUPIANO and ROSS, JJ.

LUPIANO, Justice:

The following testimony was elicited at a suppression hearing:

On January 8, 1977, Detective Daniel Fougere of the Street Crime Unit of the New York City Police Department (an experienced officer) and his partner were assigned to patrol a high-crime area encompassing West Forty-Second Street in Manhattan. At about 7:30 P.M. Detective Fougere (dressed in civilian clothes) observed the defendant first look in the display window of a novelty store on Forty-Second Street between Seventh and Eighth Avenues and then enter the store, which was directly across the street from where the officer's vehicle was parked. The officer was familiar with the store and knew that in addition to sexually-oriented reading material it offered for sale holsters, knives and imitation police badges. He exited the vehicle and went across to the store front and looked in. He observed the defendant, part of whose back and side were toward the officer, purchase a holster for a .25 caliber automatic pistol. When the sale was completed, the salesperson placed the holster in a paper bag and handed it to the defendant. This transaction occurred in the front part of the store premises, I. e., the part closest to the street.

The defendant left the store and walked west on Forty-Second Street toward Eighth Avenue, holding the bag in his left hand with his right hand by his side. Detective Fougere and his partner followed and caught up to defendant at the corner of Forty-Second Street and Eighth Avenue, a distance of some seventy-five feet from the store. Detective Fougere identified himself to the defendant as a police officer and displayed his shield. The police did not draw their weapons or physically touch defendant. The detective merely stated: "May I ask you a question" and proceeded to inquire of defendant as to why he had bought a holster. The defendant's immediate response was to put his right hand into his coat pocket. Detective Fougere further testified: "At that time, defendant Samuels put his hand in his pocket. I told him to remove his hand. He didn't." The officer then declared that he grabbed the defendant's hand from the outside of the coat, through the fabric of the coat pocket. In consequence, he felt what appeared to be a gun being held in the defendant's hand. He told the defendant to remove his hand from the pocket, threatening to "break (his) head" if he did not and shouted to his partner that defendant had a gun. When the defendant complied with the officer's order, the latter reached into the defendant's right coat pocket and removed a loaded .25 caliber automatic pistol.

Defendant testified that prior to going into the novelty store to purchase the holster, he stopped at another store to pick up his wife's camera and purchased film and flashbulbs. A receipt of payment given, it is alleged by defendant, for these items was introduced in evidence. After purchasing the holster he exited the novelty store holding the camera, film and flashbulbs in a paper bag under his left arm and holding the holster in another bag in his left hand. His right hand was in his coat pocket as he walked. Upon reaching Eighth Avenue, an officer other than Detective Fougere approached, displayed a shield and identified himself as a police officer. Upon inquiry as to what he had just purchased, defendant volunteered that he had purchased a holster. The officer next inquired if defendant had a gun, to which he responded in the negative. According to defendant at this point Detective Fougere patted-down defendant's outer clothing but failed to touch the gun. Upon standing up after the initial pat-down, the detective patted-down the defendant's right coat pocket, disclosing the presence of the gun.

The issue thus confronting the court at this suppression hearing was basically one of credibility. In denying defendant's motion to suppress as evidence against him the .25 caliber automatic pistol taken from defendant's person, the hearing court stated:

"On the basis of the Court's observations of both witnesses during the time they testified, the testimony of Detective Fougere is deemed to be more credible than that of the defendant. Defendant's description of the manner in which he allegedly carried the camera is difficult to accept. Holding the camera under his armpit and placing his unencumbered right hand into his coat pocket appears incredible when one considers the fragility of the transported instrument and the attendant risks of damage if it were dropped from such an insecure hold. Similarly, his description of the circumstances surrounding his interruption, search and arrest by a police officer other than Detective Fougere strains one's credulity when consideration is given to the testimony of Detective Fougere which was so definite, specific and unimpeached."

No basis exists on this record warranting departure from the hearing court's resolution of the credibility issue other than mere speculation. Credibility is to be determined by the trier of the facts in this instance, the hearing court.

"One of the safeguards afforded the trier of fact in determining the credibility of oral evidence is the opportunity of observing the demeanor of witnesses while they are testifying" (65 N.Y.Jur., Witnesses § 88).

"The advantages of the trial court who saw and heard the witnesses should be considered and, when truth hangs upon the credibility of witnesses, his decision should be given the greatest weight (Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632, 634; York Mortgage Corp. v. Clotar Const. Corp., 254 N.Y. 128, 134, 172 N.E. 265, 267; Smith v. Smith, 273 N.Y. 380, 383, 7 N.E.2d 272, 273)" (Amend v. Hurley, 293 N.Y. 587, 594, 59 N.E.2d 416, 419 (1944)).

"Generally and whenever possible, the fact-finder, be it the court or a jury, should be able to see and hear the witness (Schricker v. City of New York, 35 A.D.2d 743, 316 N.Y.S.2d 170), since the appearance, attitude and demeanor of a witness upon being questioned and while before the court are matters to be taken into consideration in testing veracity and in determining the weight to be accorded his or her testimony (Matter of Nowakowski, 284 App.Div. 655, 657, 133 N.Y.S.2d 842, 844, Aff'd on rearg. 1 A.D.2d 250, 252, 149 N.Y.S.2d 489, 491-492, Aff'd 2 N.Y.2d 618, 162 N.Y.S.2d 19, 142 N.E.2d 198). Indeed, the opportunity of observation often affords the most accurate method of ascertaining the truth (citation)" (People v. Carter, 37 N.Y.2d 234, 239, 371 N.Y.S.2d 905, 909, 333 N.E.2d 177, 180 (1975)).

The testimony of Detective Fougere is not inherently incredible or improbable. It is noted that defendant apparently has a criminal record and has had no conflict with the law for six years prior to the incident.

On appeal, defendant contends that the Supreme Court incorrectly denied his motion to suppress the weapon. The legal question thus presented is whether the police conduct herein as testified to by Detective Fougere is reasonable within the context of the unfolding dynamics of this street encounter. Guidance is found for proper resolution of this issue in People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 382, 352 N.E.2d 562, 569 (1976). Observing that

"the practical necessities of law enforcement and the obvious fact that any person in our society may approach any other person and attempt to strike up a conversation, make it clear that the police have The authority to approach civilians,"

the Court of Appeals declared that

"a policeman's right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter" (People v. DeBour, supra, at p. 219, 386 N.Y.S.2d at p. 382, 352 N.E.2d at p. 569) (Emphasis supplied).

That Court then outlined the four tiers of street encounter: informational inquiry, common-law right to inquire, forcible stop and detention, and right to arrest and take into custody (representing various intensities of police action) as applied to the unfolding dynamics of a street encounter:

"In evaluating the police action we must consider whether or not it was justified in its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible (citation). We bear in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence. The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality" (People v. DeBour, supra, at p. 223, 386 N.Y.S.2d at p. 384, 352 N.E.2d at pp. 571-572) (Emphasis supplied).

In our case, the police officer who was an eyewitness to a sale whereby the defendant purchased a holster for a .25 caliber pistol, which purchase, while not necessarily indicative of criminality, nevertheless formed an objective credible reason for the minimal intrusion of approaching defendant to request information, I. e., why had defendant purchased a holster. No one needs a permit or license to purchase or carry a holster. Indeed, a holster may serve a number of purposes,...