People v. Townes

• Decision Date: 20 December 1976
• Parties: , 359 N.E.2d 402 The PEOPLE of the State of New York, Respondent, v. Leon TOWNES, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 893

390 N.Y.S.2d 893

41 N.Y.2d 97, 359 N.E.2d 402

The PEOPLE of the State of New York, Respondent, v. Leon TOWNES, Appellant.

Court of Appeals of New York.

Dec. 20, 1976.

Jonathon D. Warner and William E. Hellerstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Edward Agnew McDonald, Peter L. Zimroth and Robert M. Pitler, New York City, of counsel), for respondent.

WACHTLER, Justice.

After pleading guilty the defendant was convicted of possession of a weapon as a felony (Penal Law, former § 265.05) and of resisting arrest. Thereafter, when he appeared for sentencing he sought to withdraw his guilty plea. The application was denied and he was sentenced to an indeterminate prison term of up to seven years on the weapons charge and to an unconditional discharge on the charge of resisting arrest. On this appeal the defendant contends, Inter alia, that the trial court was in error in refusing to suppress, after a hearing, the weapon in question and certain incriminating statements made by the defendant out of the presence of his attorney after counsel had been assigned.

At the suppression hearing Officer Krosofsky, the arresting officer, gave the following account of the events leading up to the defendant's arrest. On July 5, 1972, the defendant, Leon Townes, and his companion, Lionel Warfield, were observed by four plainclothes police officers connected with an anticrime unit. The defendant, and Warfield, were walking around, somewhat aimlessly, in the vicinity of East 80th Street and Third Avenue in Manhattan at approximately 10:30 p.m. For an unstated reason, the four officers, riding in an unmarked vehicle, decided to follow the defendant and his companion and keep them under surveillance. Shortly after first spotting Townes and Warfield, Officer Krosofsky and one other plainclothesman disembarked from the vehicle and began following the defendant and his companion on foot. The officers stayed approximately one-half block behind the two civilians; during this time the two other officers remained in the vehicle and maintained radio contact with the officers on foot. Townes and Warfield continued to walk in various directions and the officers continued to 'tail' them, both on foot and in the unmarked car. Eventually the two officers on foot re-entered the unmarked car and continued to follow the defendant and his companion.

Finally, at about 11:30 p.m., after having followed the defendant and his companion for approximately one hour and having observed them doing nothing more than walking about and '(l)ooking at people and stores', Officer Krosofsky emerged from the unmarked car and approached the two men. The officer testified that he approached them from the front, wich his badge in his left hand and his gun drawn, but at his side, and that when he was approximately 15 feet from the men be shouted 'Freeze, police.' Thereafter, according to Krosofsky's testimony at the suppression hearing, the defendant turned his back to the officer, took two steps and then wheeled around and pointed a gun at the officer. Krosofsky testified that he heard a single 'click' at which point he fired his own gun three times at the defendant. A second officer then ran over to the defendant and began to grapple with him. Officer Krosofsky joined the fracas and eventually the two officers wrestled the defendant to the ground and seized a .32 caliber revolver from his hand.

The following day the defendant was arraigned in criminal court and counsel was assigned by order of that court on July 10, 1972. On July 14, 1972, an indictment was filed against the defendant charging him with attempted murder, attempted assault in the first degree, two counts of attempted assault in the second degree, possession of a weapon as a felony, and resisting arrest.

After he was indicted, Townes sent a letter to the New York City Civilian Complaint Review Board (hereinafter 'Review Board') in which he claimed that he had been illegally beaten by police officers on the night of the incident leading to his arrest. Townes' letter was received by the Review Board on July 18, 1972, and a police officer was dispatched to interview the defendant at the Riker's Island Detention Facility where he was incarcerated.

Patrolman Howard interviewed the defendant, with the defendant's consent, at Riker's Island on July 21, 1972. The counsel assigned to the defendant with respect to the charges stemming from the events of July 5 was not present at this interview, nor is there any indication in the record that he had been contacted and informed that the defendant was going to be interviewed concerning this episode or that he had agreed to allow any such questioning in his absence.

Officer Howard testified at the suppression hearing that he went to Riker's Island dressed in civilian clothes, advised the defendant of his constitutional rights, and then asked Townes to describe in his own words the events which occurred on the evening of July 5. The defendant proceeded to relate an account of the incident in which he described various acts of police misconduct. During the course of this account, however, Townes stated that after the officers had knocked him to the ground and punched and kicked him repeatedly, one of the officers reached into the defendant's pocket and removed the gun in question. Thus, in essence, defendant incriminated himself by reason of his admission that he had been carrying a gun.

Before trial Townes moved to suppress the weapon as well as the statement made to Officer Howard. After a hearing defendant's motions to suppress were denied with respect to both the gun and the incriminating statement and thereafter Townes entered his plea of guilty to possession of a weapon as a felony and resisting arrest, in satisfaction of all the counts of the indictment.

With regard to the suppression of the gun, the defendant argues that the encount between himself and the plainclothes police officers constituted an unconstitutional seizure of his person and that the weapon should therefore be suppressed. While we agree that the police activity amounted to an unconstitutional seizure of Townes' person, we do not agree that it was error for the trial court to refuse to suppress the gun.

This court has recently set forth the standards to be followed in evaluating the lawfulness of police activity respecting street encounters with civilians (People v. De Bour and People v. La Pene, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872), noting that 'we must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible' (People v. De Bour, supra, p. 215, 386 N.Y.S.2d p. 379, 352 N.E.2d p. 566). Applying this standard to the present case it is clear that the actions of the police officers cannot be sustained.

It cannot be argued, and indeed the prosecutor concedes the point in his brief, that even were we to hold that the police action in stopping the defendant was justified in its inception, doing so with gun drawn and shouting a command to 'Freeze' was not reasonably related in scope to the circumstances which rendered the stop permissible, and hence the test laid down in De Bour has not been met. Here we have had a significant interruption with this defendant's freedom of movement and such a seizure by the police cannot be said to pass constitutional muster without further justification for their action (People v. Cantor, supra, 36 N.Y.2d p. 111, 365 N.Y.S.2d p. 514, 324 N.E.2d p. 876; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889).

Having so held, we turn next to whether the defendant's gun should be suppressed as the fruit of the unlawful seizure of his person. The defendant argues that the instant case cannot be distinguished from People v. Cantor (supra), and that therefore we should reach a similar result; i.e the suppression of the weapon. We cannot agree.

In Cantor the defendant was in front of his own home when he was surrounded by three men in street clothes approaching him from different directions while a fourth man in a private unmarked vehicle pulled to the curb in a manner so as to prevent any possible movement of defendant's car. None of the plainclothes police officers had identified themselves as such when Cantor, confronted with this seemingly precarious situation, reached into his pocket and pulled out what appeared to be a pistol. Thereafter one of the officers identified himself and exhibited his badge and Cantor immediately returned the object he was holding to his back pocket and placed his hands above his head as directed. The officers subsequently removed the pistol from Cantor's pocket and seized it. We held that the pistol should have been suppressed as the fruit of an unconstitutional seizure of the person since it had been 'revealed as a direct consequence of the illegal nature of the stop' (People v. Cantor, supra, 36 N.Y.2d p. 114, 365 N.Y.S.2d p. 517, 324 N.E.2d p. 878).

The instant case is distinguishable. Under the affirmed findings of fact it cannot be said that the weapon was revealed as a direct result of the unlawful nature of the police conduct. Here the gun was produced after the officers had clearly identified themselves, not before as in Cantor; and here the defendant did not immediately reholster the weapon and comply with the officer's commands, as occurred in Cantor but rather Townes disregarded those orders, pulled the weapon, aimed it at the officer and attempted to fire it. Thus, under these circumstances Townes' act was unjustified and criminal in nature (see Penal Law, § 35.27) and unrelated to the initial albeit unlawful action on the part of the police (see People v. Archiopoli, 39 A.D.2d 748, 332 N.Y.S.2d 166; see, also, People v....