People v. Tinsley

• Decision Date: 10 June 1975
• Citation: 369 N.Y.S.2d 142,48 A.D.2d 779
• Parties: The PEOPLE of the State of New York, Respondent, v. George TINSLEY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 142

369 N.Y.S.2d 142

48 A.D.2d 779

The PEOPLE of the State of New York, Respondent, v. George TINSLEY, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 10, 1975.

R. K. Hood, New York City, for respondent.

L. Sharf, New York City, for defendant-appellant.

Before STEVENS, P.J., and MARKEWICH, LUPIANO, LANE and NUNEZ, JJ.

PER CURIAM.

Judgment entered in the Supreme Court, New York County (Lang, J.) on April 30, 1973, convicting defendant upon his plea of guilty of felonious possession of a weapon and sentencing him to a term of five years probation, affirmed.

The observations of defendant's conduct giving rise to the police officers' suspicion that defendant and his companions were looking for an appropriate place to commit robbery are stated in the dissent. The Trial Court credited the police officer's testimony. On the force seven years and assigned to the special Anti-Crime Unit for two years, he had observed the pattern of conduct followed by the defendant and his two friends countless times, followed by 20 robbery arrests of persons engaged in such pattern of conduct.

The record amply justifies the Trial Court's finding that the police officers acted as men of reasonable caution and had probable cause to follow the defendant and his friends and eventually stop and frisk them for weapons. Courts should not be blind to what is happening in our streets every day. We should learn from experience. As stated in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949): 'In dealing with probable cause . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' And as the police officer in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1967) this officer was 'able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant (the) intrusion.' See also People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32 (1964), cert. denied 379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568, wherein the Court of Appeals upheld the seizure and immediate frisk of individuals who had approached a bar and grill in a high crime area at about 1:30 A.M., looked in the window, continued to walk a few steps, returned to the window, looked towards the police officers (who were in civilian clothes and sitting in an unmarked car), and walked quickly away.

Based on their observations, these street-wise members of the special Anti-Crime Unit, in the light of their expertise had probable cause to conclude that these three youths were intent on mischief. See People v. Powell, 36 A.D.2d 177, 319 N.Y.S.2d 485, affd. 30 N.Y.2d 634, 331 N.Y.S.2d 445, 282 N.E.2d 333.

All concur, except STEVENS, P.J., and MARKEWICH, J., who dissent in the following memorandum by STEVENS, P.J.:

I dissent and vote to reverse and grant the motion to suppress and would vacate the judgment and dismiss the indictment.

This defendant entered a plea of guilty to possession of a weapon as a felony after denial of his motion to suppress a loaded pistol which was found upon his person. The facts leading to the incident were testified to at the suppression hearing by one of the arresting officers. To put the picture in focus, it is necessary to relate at some length his testimony.

This officer was a member of the Anti-Crime Unit and on January 25, 1973, he was on patrol in a private car with a fellow officer. At about 2:15 P.M. he observed defendant and two other youths walking slowly north on the west side of Madison Avenue, looking into store windows. At 90th Street, they crossed to the east side of the Avenue continued north and midway in the block entered a liquor store, remained about one minute and left the store without a package. They continued walking on Madison Avenue and crossed over again to the west side of the Avenue looking into different store windows as they walked. At 96th Street, according to the officer, one of the boys stood on the corner and the other two proceeded north toward 97th Street. As the boys continued to walk on the Avenue, the officer observed them enter a women's shoe store, remain a few moments and then come out. One of the officers entered the store, spoke to the manager and was informed that the youths had inquired about a pair of sneakers but had not purchased anything. (At this point, the officers were joined by a third officer in plainclothes and apparently the boys began walking south.) Near 90th Street, the officers observed the three boys looking into the window of a lingerie shop for a 'couple of seconds.' They then crossed the street and went into a drugstore, where they remained, again according to the officer, 'maybe a couple of seconds,' came out and continued walking south. The officers entered the drugstore and were told by a clerk that one of the three had inquired about the price of an athletic supporter which was in display in the window. The boys continued south on Madison Avenue to 80th Street, stood on the corner for a few minutes, and then the defendant and one of the boys walked into a hardware store, while, according...