People v. Walton

• Decision Date: 08 December 1983
• Citation: 98 A.D.2d 842,470 N.Y.S.2d 831
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert D. WALTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 831

470 N.Y.S.2d 831

98 A.D.2d 842

The PEOPLE of the State of New York, Respondent, v. Robert D. WALTON, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 8, 1983.

Guido A. Loyola, Schenectady, for appellant.

John B. Poersch, Dist. Atty., Schenectady (Alfred D. Chapleau, Schenectady, of counsel), for respondent.

Before SWEENEY, J.P., and CASEY, MIKOLL, LEVINE and YESAWICH, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Schenectady County rendered July 27, 1982, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

Defendant was indicted by a Schenectady County Grand Jury in a three-count indictment charging two counts of criminal possession of a weapon in the third degree and criminal possession of stolen property. Defendant was charged in a second indictment containing seven separate counts accusing defendant of a shooting assault that took place earlier in the morning of the same day on which the incident out of which the possession of a weapon charge arose. A third indictment charged him with first degree perjury relating to testimony he gave before the Grand Jury.

Defendant entered pleas of not guilty to all counts. An omnibus motion was brought on defendant's behalf by assigned counsel. A suppression hearing was conducted to determine the admissibility of a .44 magnum revolver seized from defendant's person on October 3, 1981 at about 2:30 A.M. by the police. The court denied the suppression motion, finding that the police had "good cause to pat down the defendant".

Subsequently, plea negotiations were entered into and on July 13, 1982, the court, after making inquiry of defendant, accepted defendant's plea of guilty of criminal possession of a weapon in the third degree in satisfaction of all pending indictments and crimes committed by defendant as of that date, known and unknown. Defendant, in exchange, "would withdraw all motions pending, undecided and decided, that have been made in all three matters". Additionally, if defendant had a prior felony conviction, he would be sentenced to two to four years' imprisonment. If not, his sentence would be two to six years' imprisonment.

On July 27, 1982, at his sentencing hearing defendant moved pro se to withdraw his guilty plea, arguing that he had been ineffectively represented. This motion was denied. Defendant refused to accept his assigned counsel and he walked out of the courtroom. A recess was called and the sentencing proceedings continued in the detention pen immediately adjoining the courtroom, as defendant refused to return to the courtroom for sentencing. Defendant also refused to admit or deny whether he was convicted of a previous felony on January 16, 1982 in Schenectady County. The prosecutor then withdrew the information charging there was a prior felony conviction and consented to defendant being sentenced as a first felony offender. The court sentenced defendant to two to six years' imprisonment. This appeal ensued.

There should be an affirmance. The trial court properly denied defendant's motion to suppress the loaded .44 magnum revolver, as the frisk through which the weapon was discovered was lawful. The officers making the frisk had received radio calls dispatching them to a bar where a person had reportedly been threatened by a man with a gun. At the bar, one Brian Dunn told the officers that he had made the call to police and that a black man wearing light-colored clothes was in the bar with a gun. The officers knew that they were only two blocks from the scene where a man had been shot 50 minutes earlier, and that a black man wearing light-colored clothes carrying a silver object in his hands had been seen leaving the shooting scene. They knew that the perpetrator of the earlier crime had not yet been apprehended and that defendant matched the description of the suspect. Defendant was the only black man in the bar and was known to the officers. Patrolman William Potenza asked defendant whether he had a gun and defendant's only response was a smile. Under all of these circumstances, the limited pat-down search was lawful (see CPL 140.50, subd. 3; People v. Klass, 55 N.Y.2d 821, 822, 447 N.Y.S.2d 433, 432 N.E.2d 135; People v. Benjamin, 51 N.Y.2d 267, 270-271, 434 N.Y.S.2d 144, 414 N.E.2d 645).

The District Attorney's contention that defenda...