People v. Young

• Citation: 609 N.Y.S.2d 725,202 A.D.2d 1024
• Parties: PEOPLE of the State of New York, Respondent, v. Rudolph YOUNG, Appellant.
• Decision Date: 11 March 1994
• Court: New York Supreme Court Appellate Division

Page 725

609 N.Y.S.2d 725

202 A.D.2d 1024

PEOPLE of the State of New York, Respondent, v. Rudolph YOUNG, Appellant.

Supreme Court, Appellate Division Fourth Department.

March 11, 1994.

Edward J. Nowak by Brian Shiffrin, Rochester, for appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for respondent.

Before DENMAN, P.J., and BALIO, LAWTON, FALLON and DAVIS, JJ.

MEMORANDUM:

Defendant was arrested at 7:40 A.M. on April 27, 1991, after being found lying face up in the back seat of a car in the City of Rochester. At the time of his arrest, defendant was a suspect in three burglaries and a homicide occurring in March and April 1991. Defendant contends that his arrest was made without probable cause and therefore that the fruits of that arrest must be suppressed. We agree that the police did not have probable cause to arrest defendant.

At the suppression hearing, Deputy Vasile testified that he suspected defendant of the burglaries and homicide because of an interview he had conducted with defendant 2 1/2 years earlier during an investigation of a burglary in Penfield; defendant was not charged with and did not admit that he committed that burglary. Vasile further testified that he considered defendant a suspect because the modus operandi of the March and April 1991 burglaries was similar to the modus operandi of the Penfield burglary. Thomas Schrader of the Brighton Police Department testified that he considered defendant a suspect in the March 1991 burglary because the "method of entry" was similar to that of a burglary that had been investigated three or four years earlier and defendant had been a suspect in that investigation. Defendant had not been charged with that burglary. Schrader admitted that the victim of the March 1991 burglary was shown a photo array containing a picture of defendant and did not identify him.

Vasile and Schrader also testified that they considered defendant a suspect because he matched a general description provided by one of the victims. The police determined to pick up defendant for questioning. At 6:30 A.M. on April 27, Vasile and his partner, in plain clothes and driving an unmarked car, saw defendant on Bay Street in Rochester. They drove past defendant, made a U-turn, and saw defendant running down the street. They did not ask defendant to stop and did not identify themselves as police officers. Numerous officers responded to a call for assistance, and at 7:40 A.M. defendant was found in the back of a vehicle parked in a driveway. An officer pointed his weapon at defendant and ordered him to put his hands up. Defendant was handcuffed and immediately taken to the police station.

We disagree with the suppression court that the police had probable cause to arrest defendant for trespass. It is not disputed that, when defendant was handcuffed and placed in the police car, he was under arrest. At that moment, the police had no information that defendant did not have permission to be on the premises or in the vehicle. The People contend that the police obtained information immediately after the arrest that provided probable cause to arrest defendant for trespass. There was no testimony at the hearing, however, that that information was conveyed to the officers who had arrested defendant. In any event, the police cannot rely on evidence obtained after an arrest to provide probable cause (see, People v. Battaglia, 56 N.Y.2d 558, 450 N.Y.S.2d 178, 435 N.E.2d 395, revg. on dissenting opn. of Hancock, J., 82 A.D.2d 389, 442 N.Y.S.2d 316; People v. Williams, 191 A.D.2d 989, 595 N.Y.S.2d 588, lv. denied 82 N.Y.2d 729, 602 N.Y.S.2d 826, 622 N.E.2d 327).

Review of the record reveals that the People's theory at the suppression hearing was that the police had probable cause to arrest defendant for trespass. They now contend that the police had probable cause to arrest defendant for the burglaries and homicide. Inasmuch as that theory was not advanced at the hearing, the People are precluded from asserting it now (see, People v. Johnson, 64 N.Y.2d 617, 619, n. 2, 485 N.Y.S.2d 33, 474 N.E.2d 241; People v. Dodt, 61 N.Y.2d 408, 416, 474 N.Y.S.2d 441, 462 N.E.2d 1159; People v. Paul, 139 A.D.2d 916, 918, 527 N.Y.S.2d 905). In any event, we conclude that the police did not have probable cause to arrest defendant for the burglaries and homicide. None of the victims had even tentatively identified defendant (cf., People v. Palacio, 121 A.D.2d 282, 503 N.Y.S.2d 56) and the burglaries allegedly connecting defendant by modus operandi had occurred 2 1/2 to four years earlier. Additionally, defendant had not been arrested for or charged with the earlier burglaries. The description provided by one of the victims was not sufficient to provide probable cause for the arrest (see, People v....