People v. Sterling
| Decision Date | 11 July 1978 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Carlos STERLING and Hector Cedeno, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Mark R. Dwyer, Asst. Dist. Atty., of counsel (Robert M. Pitler, New York City, with him on the brief; Robert M. Morgenthau, Dist. Atty.), for appellant.
August C. Agate, Kew Gardens, of counsel (Ressler & Agate, Kew Gardens, attorneys), for defendants-respondents.
Before KUPFERMAN, J. P., and LUPIANO, MARKEWICH, YESAWICH and SULLIVAN, JJ.
The People appeal from an order which granted defendants' motion to suppress weapons seized from them.
Carlos Sterling and Hector Cedeno were indicted separately and each charged with possession of a weapon in the third degree and criminal possession of a controlled substance in the sixth degree. A third individual, Frank Collado, arrested with Sterling and Cedeno, was separately indicted on other weapons possession charges.
On the evening of September 11, 1976, Detectives O'Shaughnessy and Shaw of the Street Crime Unit were patrolling in a medallion taxi cab, when they received a radio communication that an unidentified caller had reported that a robbery was about to occur. The report stated that a number of men with guns were in a brown car, bearing license number 984VYI, at 107th Street and Amsterdam Avenue. The detectives drove to the intersection.
At the location they noticed a dark-colored car at one corner of the intersection, but, after inspection of the license plate, determined that the car was not the subject of the report. Then they spotted a brown car on 107th Street, parked away from the curb. Two men were standing in the gutter next to the car, and were apparently conversing with the car's occupants. The front seats were unoccupied.
Detective O'Shaughnessy exited from the cab and approached the car, while Detective Shaw slowly drove the taxi behind him. As O'Shaughnessy advanced toward the car he observed that the license number was 984BYI, identical to the reported license plate except for one letter. He also noticed two men in the car. When O'Shaughnessy was within one car-length of the brown car, one of the men in the gutter, later identified as Frank Collado, spotted him and turned away toward the other man in the street, Alexander Pichardo. The two conversed momentarily, and then Collado moved toward the back of the car, while Pichardo walked toward O'Shaughnessy. O'Shaughnessy saw Collado place both his hands in front of his body out of O'Shaughnessy's line of sight. The detective then took out his badge, placed his hand on his gun in his jacket pocket, and yelled to Collado, "Police, don't move."
Collado continued his furtive movements. O'Shaughnessy pulled his gun and yelled a second warning. O'Shaughnessy walked up to him, reached around Collado's waist, felt a gun, and removed it. Holding up the gun, O'Shaughnessy yelled "gun" to Shaw, who had exited from the cab after stopping it alongside the brown car. While O'Shaughnessy frisked Collado, Shaw frisked Pichardo and ordered the two occupants of the car, Sterling and Cedeno, to place their hands on the front seat. Sterling and Cedeno were then ordered out of the car and frisked by the officers, assisted by a newly arrived back-up team. The frisk of Sterling and Cedeno produced weapons and ammunition and they were arrested. Marijuana was subsequently discovered in the car by Shaw, when he drove the car to the station house.
After a joint suppression hearing, Trial Term found that the officers were justified in frisking Collado because of the potential danger suggested by his movements and his failure to heed the command of O'Shaughnessy. But the court granted the motions of Sterling and Cedeno to suppress because Collado's possession of a gun did not provide a "founded suspicion" that Sterling and Cedeno possessed guns.
("A) police officer . . . in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information." (People v. De Bour, 40 N.Y.2d 210, 213, 386 N.Y.S.2d 375, 378, 352 N.E.2d 562, 565.) His ". . . 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." (Id. at p. 219, 386 N.Y.S.2d at p. 382, 352 N.E.2d at p. 569.) In De Bour two officers on patrol at night stopped an individual...
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