People v. Voutsinas

• Decision Date: 01 December 1977
• Citation: 400 N.Y.S.2d 200,60 A.D.2d 664
• Parties: The PEOPLE of the State of New York, Appellant, v. Paul F. VOUTSINAS, Sr., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 200

400 N.Y.S.2d 200

60 A.D.2d 664

The PEOPLE of the State of New York, Appellant, v. Paul F. VOUTSINAS, Sr., Respondent.

Supreme Court, Appellate Division, Third Department.

Dec. 1, 1977.

Robert E. Jones, Cortland County Dist. Atty., Cortland (Kathleen Heirich Casey, New York City, of counsel), for appellant.

John F. Henry, Mattydale, for respondent.

Before KANE, J. P., MAIN, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from orders of the County Court of Cortland County, entered March 8, 1976 and October 5, 1976 in Cortland County, which granted motions by defendant to suppress certain evidence.

Indicted by the Cortland County Grand Jury for the crimes of burglary in the third degree and criminal mischief in the third degree as the result of an early morning incident in the City of Cortland on February 13, 1975, defendant subsequently obtained orders suppressing statements which he made following the stop of his automobile by State Police Officer Rudd on that morning and his clothing which was seized at the police station later that same day. The People appeal herein from each of the orders of suppression.

Considering initially the order of October 5, 1976 suppressing the oral statements made by defendant to Officer Rudd, we hold that the statements should not have been suppressed. The record establishes that defendant was stopped on a deserted city street by Officer Rudd at approximately 4:40 A. M. An attempted burglary had occurred in the vicinity some five hours earlier, and two individuals on foot had been reported acting suspiciously in the area that same morning. Additionally, at approximately 2:30 A. M. Trooper Rudd had observed and unsuccessfully followed an individual on foot nearby, and defendant's automobile bore license plates indicating that it was from out of the area. While the totality of these circumstances is admittedly insufficient to indicate criminal activity on the part of defendant, it is our view that the circumstances clearly provided "(an) articulable reason sufficient to justify" the investigative stop wherein defendant was merely asked for his license and registration as well as an explanation for his presence in the area during the wee hours of the morning (People v. De Bour, 40 N.Y.2d 210, 213, 386 N.Y.S.2d 375, 378, 352 N.E.2d 562, 565).

We would further point out that the statements sought to be suppressed were plainly given voluntarily to Officer Rudd as he recorded defendant's initial responses to his questions. At the time defendant was standing in the open air near his car and unquestionably not in custody, and he freely approached Officer Rudd and stated that he had lied about being a local college student, but was rather in the area to pick up a friend. Such being the case, the statements are clearly admissible into evidence even though the Miranda warnings had not yet been given to defendant (cf. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)).

With regard to the earlier order of March 8, 1976, we must withhold determination of the appeal and remit the matter for further proceedings to determine the timeliness of ...