People v. Young
| Decision Date | 04 May 1981 |
| Citation | 438 N.Y.S.2d 850,81 A.D.2d 843 |
| Parties | The PEOPLE, etc., Respondent, v. James YOUNG, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein, New York City (Claudia Van Wyk and Andrew C. Fine, New York City, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Steven A. Lipton, Kew Gardens, of counsel), for respondent.
Before DAMIANI, J.P., and GIBBONS, GULOTTA and THOMPSON, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, 96 Misc.2d 710, 409 N.Y.S.2d 625, Queens County rendered July 31, 1979, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial of defendant's motion to suppress certain evidence.
Judgment reversed, on the law, guilty plea vacated, motion to suppress granted, and matter remitted to Criminal Term for further proceedings.
On the evening of December 29, 1977 Officer Robert Garbus, Detective Edward Morgan and Police Officer Brenton Esty were patrolling in an unmarked vehicle. Garbus observed defendant, who was driving a 1978 rented Dodge with another passenger present in the front seat, make a right hand turn without giving a proper signal. Officer Garbus said to his partners, "let's stop him and advise him of the situation that he failed to signal a right-hand turn." The unmarked car, with Officer Garbus seated in the rear seat, pulled alongside defendant's car which had stopped for traffic. Officer Esty showed defendant a shield that said "New York City Police Department". Officer Garbus exited the right rear door of the police vehicle. He held his shield out as he approached the defendant's car. When he was approximately one foot away from the driver's side of the car, Garbus saw both defendant and the passenger bend over as if they were placing something or removing something from under the front seat. The officer drew his revolver and said, "Police, don't move." He then opened the door of the car and had defendant step out. Detective Morgan, located at the passenger side of the defendant's car, removed the passenger from the vehicle. Officer Esty looked under the front seat and found a gun under the driver's seat and 11 glassine envelopes under the passenger seat. Upon hearing Esty say, "I have a gun", Garbus handcuffed the defendant, placed him under arrest and searched him. He found 25 glassine envelopes in the defendant's sock, and one such envelope in his hatband. All the glassine envelopes were later found to contain heroin. A black purse, containing a hypodermic instrument and other paraphernalia, was found in the defendant's right rear pocket.
The defendant was taken to a police station where he was placed in a sitting room and advised of his Miranda rights. After each of the warnings defendant was asked if he understood and he answered that he did. After all the warnings were read defendant was asked if he wished to make a statement without the presence of an attorney. He stated that he wished to do so. He then stated that the 26 glassine envelopes found on his...
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