A police officer and a sergeant received two radio reports about a gunpoint robbery involving three black men, two of whom had bicycles. According to the first radio report, the victim, a black man dressed in all white, was waiting for them on the corner of Mott and Central Avenues in Queens County. The second radio report related that a gun was involved in the robbery.
Upon arriving at that location, the police officer observed the defendant, a black male, dressed in white and carrying a white jacket. The police officer exited the car, approached the defendant, asked him if he was okay, and in which direction the perpetrators fled, and asked him to enter the police car to help them canvass the area. Instead of answering, the defendant fled down the block. The police officer, thinking that the defendant was a perpetrator, chased him in his car, and saw him throw a jacket to the ground. He blocked the defendant's path with his car, wrestled him to the ground, and handcuffed him. The police officer recovered the jacket and felt a heavy object therein which was determined to be a loaded.32 caliber revolver. Upon further search, 20 bags of marihuana were discovered in the defendant's right jacket pocket. The defendant was charged with criminal possession of a weapon in the third degree and criminal possession of marijuana in the fifth degree.
The defendant sought to suppress the gun and marijuana, and, after a Mapp hearing, the court denied the defendant's motion. He was convicted of criminal possession of marijuana in the fifth degree and criminal possession of a weapon in the third degree. The defendant contends that the hearing court should have suppressed the gun and marijuana because the police did not have reasonable suspicion to chase him and the property was abandoned as a result of their unlawful pursuit.
Although the police had an objective reason to approach the defendant and inquire based on the information received in the radio report, that information, combined with the defendant's flight, did not justify the significantly greater intrusion of police pursuit. Inasmuch as the unlawful police pursuit induced the defendant to abandon the jacket which contained the gun and marijuana, the evidence should have been suppressed.
In another gun crime proceeding, the Appellate Division's determination that the People established good cause for the delay in prosecuting the defendant is a mixed question of law and fact for which there is support in the record. This case involves a 1981 vicious double murder in a Queens County bar, for which no one has yet been prosecuted. Three individuals linked to organized crime were thought to be suspects. While 20 to 25 people allegedly were in the bar at the time of the murders, virtually all of them denied seeing the crime. Shortly after the murders, the main witness either fled the jurisdiction or hid from the police, refusing to cooperate. Another witness recanted her identification of one of the witness resulting in dismissal of an indictment against him. The other one has never been located. The Appellate Division's inference of witness fear has ample support in the record, placing the good cause issue beyond the Court's further review.
A fine distinction between due process and speedy trial standards when dealing with delays in prosecution was never drawn. Indeed, the factors utilized to determine if a defendant's rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution. Those factors are not simply the extent of the delay but also the reasons for the delay, the nature of the underlying charge.
While the delay has been extensive, the other factors favor the prosecution. Two bar owners were shot point blank after the defendant's cohort allegedly became enraged over a spilled drink, resulting in second degree murder charges. There was virtually no pretrial incarceration. The defense has not been impaired; to the contrary, the defendant has enjoyed significant freedom with no public suspicion attendant upon an untried accusation of crime, and the record does not demonstrate undue prejudice to the defense. Far from giving the People an unfair tactical advantage, the delay here has made the case against the defendant more difficult to prove beyond a reasonable doubt. In any event, a determination made in good faith to delay prosecution for sufficient reasons will not deprive the defendant of due process even though there may be some prejudice to the defendant.