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Before the police may stop a person


The People appealed from an order of the Supreme Court, in this Criminal case, which, after a hearing, suppressed the use of a gun and a cartridge as evidence against the defendants. The indictment charges the defendants with the crime of criminal possession of a weapon in the third degree, a class D felony.

A Queens County Criminal attorney said that in one morning in November 1975, an Officer was operating a police car on radio motor patrol westbound on Jamaica Avenue, when he heard a shot. He stopped the car and rolled down the window. Three minutes later he heard another shot. Several seconds later he saw the defendants’ vehicle proceeding eastbound on Jamaica Avenue, three short blocks away, coming from the direction of the shots.

There were no other vehicles or pedestrians in sight. He did not attempt to block the vehicle. Instead he allowed it to pass. As he was bringing his own car to a stop some 12 feet behind the defendants’ car, he “stepped on his brights and observed an object, which he identified as a gun, being dropped to the ground from the passenger side of defendants’ vehicle.” He was then still in his police car.

After the gun struck the ground, the Officer and his partner “exited their patrol car with their guns drawn” and ordered the defendants to get out of their car “with their hands in the air.” He then formally placed them under and his partner gave them their rights. The defendants were identified as the driver and the passenger.

The Court held that “There being no basis for the stop and no probable cause to arrest the defendants, the search of their vehicle was unlawful.” “This case raises the fundamental issue of whether or not a police officer, in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information. We hold that he may. The basis for this inquiry need not rest on any indication of criminal activity on the part of the person of whom the inquiry is made but there must be some articulable reason sufficient to justify the police action which was undertaken.”

How much greater justification is there for a police officer to “approach a private citizen on the street for the purpose of requesting information” when the basis for the inquiry does rest on an indication that there was criminal activity afoot, even if it was not “on the part of the person of whom the inquiry is made.”

“Considering the justification at its inception, we first address the People’s interpretation of the opinion. Their argument that the patrolmen were authorized to ascertain whether there was any criminal activity is a sheer bootstrap. Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present. The police may not justify a stop by a subsequently acquired suspicion resulting from the stop. This reasoning is the same which refuses to validate a search by what it produces. To validate this stop under the common-law power to inquire, the Criminal Court must examine the knowledge possessed at that moment and any reasonable inferences. Although this analysis involves a less stringent degree of belief than probable cause, it should be approached in the same manner so as to permit the use of familiar signposts as points of reference. DWI could have been charged.

“We have defined a seizure of the person for constitutional purposes to be a significant interruption with an individual’s liberty of movement. Our recent decisions have emphasized the primacy of the right to be free from aggressive governmental interference. The actions of three plainclothes officers in surrounding the defendant with revolvers drawn and blocking his vehicle with their own was considered an unconstitutional seizure. Similarly, in a case, where a motorist was ‘accosted’ and ‘restrained’ for a ‘routine traffic check’ we held that this constituted a ‘limited seizure within the meaning of constitutional limitations’. The conduct of the policemen in the instant case presents a sharp contrast to these last-mentioned cases.

“While we agree that the patrolmen here had no articulable reason to seize forcibly, or arrest the defendant, we cannot say that the defendant’s right to be free from an official interference by way of inquiry is absolute.

This approach is hardly reasonable and if adopted would probably lead to an over-compensation in the form of a dilution of the standards embracing reasonable suspicion or probable cause. “‘The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would “leave law-abiding citizens at the mercy of the officers’ whim or caprice” Common sense and a firm grasp of the practicalities involved compel us to reject an all or nothing approach. The crucial factor is whether or not the police behavior can be characterized as reasonable which, in terms of accepted standards, requires a balancing of the interests involved in the police inquiry.

In an endeavor to show that the police, in alighting from their vehicle with guns drawn, had thereby improperly and without probable cause placed the defendants under arrest, the defendants, in their brief, assert “they (the police) did not know what that object was until it was retrieved.” If that were a factually correct statement of what the record shows, and what the trial court found, their conclusion would be correct. In fact, however, the record makes it clear, and the trial court found as a fact, that the officers observed that what was thrown from the passenger’s side of the defendants’ vehicle was an object which, when it landed on the ground, was observed to be a gun and it was only thereafter that, as the court said, the “officers then exited their patrol car with their guns drawn.”

By that test the purpose of the stop here was legal and proper and did not constitute an arrest. The arrest of the defendants only took place when the police officers exited their automobile with their guns drawn and, at that time, they had reasonable and probable cause for so doing because they had seen a gun thrown from the automobile occupied by the defendants.

While the defendant raises several issues on this appeal, only four are worthy of review. He first contends that the court erred in denying his motion under CPL 210.40 to dismiss the indictment in the interests of justice. Criminal Procedure Law 210.40 provides that an indictment may be dismissed in furtherance of justice when ‘such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice’. Thus the question of whether an indictment should be dismissed in furtherance of justice is addressed to the discretion of the trial judge. While that discretion is clearly not absolute, the issue on appeal is whether the court abused or improvidently exercised its discretionary authority.

While the efficacy of CPL 210.40 in its present form has recently been the subject of concern in the Court of Appeals, to the extent that it continues to permit the exercise of judicial discretion, its application ‘should be narrowly confined, (and) rarely exercised’. Moreover, our Legislature has determined that the nature of defendant’s crime represents a grave threat to society.

On this record, in our view, the trial court properly exercised its discretion in denying the motion. While we recognize that the defendant is a student, undergraduate instructor and doctoral candidate, facts, incidentally, which should not militate in his favor in the context of this case, the trial testimony clearly established that the defendant was not only experienced in the drug culture, but that he spent part of his time in the sale of narcotics. The evidence of his guilt is overwhelming; his criminal activity reveals careful fore-thought and execution; and the record reasonably supports a conclusion that his motivation for the crime was personal profit. Additionally, viewed even from this distance, we find that his trial testimony was not credible.

Without reciting the trial court’s findings, it is sufficient to note that the record amply supports its determination that the defendant was predisposed to commit the offense for which he was charged. While it is clear that defendant did not intent to enter New York to sell cocaine but intended only to sell it in Pennsylvania, the fact that he was lured into New York is of no avail to him as regards this statutory defense.

Indeed, recognizing that the defendant should not succeed in his entrapment defense, the dissent focuses on the ‘reprehensible’ nature of the police conduct as a denial of ‘due process’, all the while conceding that ‘the defendant in this case committed an act for which he has been adjudged guilty’. In any event, defendant’s due process argument is founded upon the improper conduct of the police in their relationship with the informant. Due process considerations ‘come into play only when the government activity in question violates some protected right of the Defendant’. It is not urged by the defendant that any such protected right was violated here.

While it is true that the police are charged with full knowledge of the actions of their informant, the conduct of neither the police nor the informant is so outrageous as to “(shock) the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment’. Finally, defendant contends that the mandatory sentence provided for in Penal Law, § 70.00 constitute cruel and unusual punishment as applied to him. The minimum period of imprisonment for a class A–I felony conviction is not less than 15 years (Penal Law, § 70.00, subd. 3, par. (a)(i)) and the maximum term is life imprisonment (Penal Law, § 70.00, subd. 2, par. (a)).

In connection with this argument we note that the Court of Appeals, in passing upon the former mandatory sentence provisions for a class A felony in Penal Law, § 70.00, ruled that ‘regardless of its severity, a sentence of imprisonment which is within the limits of a valid statute ordinarily is not cruel and unusual punishment in the constitutional sense’. Subsequent to the 1973 amendments to Penal Law, § 70.00, which amendments subdivided class A felonies into A–I, A–II and A–III classifications and provided separate minimum periods of imprisonment for each classification, the Court of Appeals determined that the mandated minimum and maximum periods of imprisonment for class A–II and class A–III felonies do not constitute cruel and unusual punishment and are not grossly disproportionate punishments. Beyond that, however, defendant nonetheless asserts that his is a ‘rare case (and that) on its particular facts the statutes have been unconstitutionally applied’ to him. In the circumstances of this case, we find no merit to defendant’s argument. Both the defendant and his offense ‘fit the statutory definition of the offender class, and are also encompassed by legitimate penological purposes as envisioned by the Legislature’.

Accordingly, the court held that the judgment of conviction should be affirmed.

Accordingly the order of suppression was reversed and the defendants’ motion was denied.

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