People v. White

• Decision Date: 24 March 1983
• Citation: 461 N.Y.S.2d 515,92 A.D.2d 1033
• Parties: The PEOPLE of the State of New York, Respondent, v. Steven E. WHITE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 515

461 N.Y.S.2d 515

92 A.D.2d 1033

The PEOPLE of the State of New York, Respondent, v. Steven E. WHITE, Appellant.

Supreme Court, Appellate Division Third Department.

March 24, 1983.

Douglas P. Rutnik, Albany County Public Defender, Albany (Shawn D. Flaherty, Albany, of counsel), for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany (George H. Barber, Albany, of counsel), for respondent.

Before MAHONEY, P.J., and SWEENEY, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered December 10, 1980, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the third degree.

Defendant's conviction in this case followed an unsuccessful motion to suppress a gun found by the police which formed the basis of the charge against him. According to the testimony of Detective Murphy, the sole witness to testify at the suppression hearing, he and his partner, Detective Sutton, observed defendant in a conversation with the occupant of a car on a street corner in the City of Albany. Murphy testified that, while he recognized defendant, he did not know his name until informed by Sutton that it was Steven White. Murphy was also told by Sutton that there were warrants outstanding for the arrest of Steven White. Based on this information, the two police officers followed defendant as he began walking away after the completion of his conversation.

Murphy further testified that Sutton called out to defendant, identified himself as a police officer and asked to speak with him. Defendant merely looked back over his shoulder and continued walking. When Detective Sutton again called to defendant, Murphy stated that defendant turned toward them revealing a holster and revolver in his waistband. Several seconds later defendant tossed the gun into an empty lot next to a car. It was subsequently recovered by Detective Murphy and defendant was arrested. At the conclusion of the hearing, the trial court denied the motion to suppress the gun after finding that it had been abandoned by defendant's act of throwing it into the empty lot.

It is our view that the trial court properly denied defendant's suppression motion. Recent decisions of the Court of Appeals indicate that an examination into a defendant's response to police conduct must be conducted to determine whether abandonment of an article has occurred. If an article possessed by a defendant is discarded as a spontaneous reaction to police conduct which is illegal, no abandonment will be found and the article will be inadmissible (People v. Howard, 50 N.Y.2d 583, 430 n.y.s.2d 578, 408 N.E.2d 908, cert. den. 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484). However, if the discard is an "independent act involving a calculated risk", abandonment will be found and the article is admissible even though the police conduct which preceded the discard may have been illegal (People v. Boodle, 47 N.Y.2d 398, 404, 418 N.Y.S.2d 352, 391 N.E.2d 1329, cert. den. 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383). Since a review of the testimony at the suppression hearing indicates that defendant "had time enough to reflect and formulate a strategy for ridding himself of the incriminating evidence" (id.), we conclude that defendant's act of throwing the revolver into the empty lot after being approached by the police was calculated rather than spontaneous and thus within the holding ofPeople v. Boodle (supra ).

Having concluded that the police conduct in this case did not provoke defendant into revealing the evidence seized (id., 47 N.Y.2d at 404-405, 418 N.Y.S.2d 352, 391 N.E.2d 1329), it becomes unnecessary for us to consider the...