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The defendant testified in his own behalf


This was an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered on 14 June 1972, convicting him of attempted criminal possession of a weapon, among others, as a felony, upon his guilty plea, and imposing sentence. The appeal brought for review an order of the same court, dated 25 May 1972, which denied defendant’s motion to suppress physical evidence.

On 10 March 1972 at about 12:30 A.M., Patrolman RL and his partner, Patrolman B, were stationed in an unmarked car in the vicinity of 107th Avenue and New York Boulevard in Queens. Their vehicle was painted to look like a taxicab, but contained a police radio. He described the area as ‘a very heavy drug crime prone location’, where numerous arrests for stolen cars and other stolen property are made. The officers parked the vehicle about a half block from a bar on New York Boulevard which was ‘under observation’. They were facing toward the bar and were parked across the street from it.

At that time they observed a late model Cadillac, driven by herein defendant MF, pulled up and double parked outside the bar. The only one in the car was the driver as he did not get out of the car. The car remained double parked for ‘not even one minute’, and then drove off. The car just went around the block. Then the car appeared again a short time later, double parked in the same place and, within ‘less than a minute’, drove off a second time. At that point Patrol RL told his partner that he ‘intended to stop the car and check it out.’

As the Cadillac went around the block, the officers proceeded in a different direction to head it off. They did so, on a narrow street by pulling in front of the Cadillac, head to head, so that both cars had to come to a stop. RL observed the defendant in the Cadillac took his hat off and dropped it to the floor of the car. Both officers then got out of their vehicle and showed their identifications. The defendant got out of his car as the policemen approached and stood next to the door of his car, which was wide open almost at a 90-degree angle.

Patrolman B then asked the defendant for his license and his car registration. Meanwhile, RL walked behind the criminal defendant and looked down at the floor area of the car, where he observed a .38 caliber revolver next to the hat which defendant had dropped. RL ‘retrieved’ the revolver and the defendant was placed under arrest.

The defendant filed a motion to suppress physical evidence. At its hearing, the sole witness for the prosecution was Patrolman RL, Jr. who testified that he was assigned to the anti-crime unit of the 103rd Precinct and that he had been a member of that unit for about a year and a half.

Patrolman RL conceded that he had observed nothing improper about the Cadillac which would have warranted a safety check. He acknowledged also that stopping cars for safety checks was not part of his duties as he was not assigned to traffic duty. He did admit that he thought the car was ‘possibly’ stolen, although there was no police information or communication that such car was suspected of being stolen. He also admitted that he had made no effort over the radio to have the license plate checked.

The defendant testified in his own behalf. He stated that he was a conductor for the Long Island Railroad and had worked there for three years. On 9 March 1972 he had worked from 3:56 to 11:42 P.M. and had terminated his duties at the Jamaica Station. From there he drove to the vicinity of New York Boulevard and South Road to meet a friend who had told him that he would be in one of two bars in that area. He stopped outside a bar at 159th Street and South Road, went inside, and departed after not finding his friend inside. He then drove to a bar on New York Boulevard, two or three blocks from the first one. This time he stayed in his car because he could already observe the inside of the bar from where he was. After determining that his friend was not there, he turned right at the next block to go to his home. The defendant denied stopping twice outside the second bar. In any event, shortly after turning from New York Boulevard, he was headed off by a taxicab. One of the occupants of the cab got out and displayed a badge. Defendant was asked for his license and registration, which he handed to the officer while he was still seated in the car. Then Patrolman B looked at his documents and told him ‘to get out, for he wanted to search the car.’ Patrolman B searched the glove compartment, under the seat, and the back of the car, but did not find anything. Patrolman RL approached them and produced a flashlight. He searched the defendant and the car for the second time. RL used the flashlight to search under the car seat where he found the gun. The defendant denied ever having seen that gun before. He also denied wearing a hat.

Defendant’s motion to suppress physical evidence was denied with Criminal Term finding that (1) the initial stop of defendant’s vehicle was justified because a police officer, of course, under settled law may stop and inquire as to ownership of the vehicle and (2) the evidence sought to be suppressed was in open view and, accordingly, there had been no illegal search. Upon denial of the motion, the defendant pleaded guilty to the crime of attempted criminal possession of a weapon.

The sole issue was whether the initial ‘stop’ of defendant’s vehicle was justified.

The Court ruled that it was not. There was no merit to the arguments advanced by the People. ‘Heading’ a car off with an unmarked police vehicle is no minimal intrusion of the defendant’s rights. The fact that the defendant was observed in an area noted for its drug crimes, stolen car and stolen property arrests did not afford justification for the actions taken. Defendant’s actions were innocent and could not possibly suggest involvement with drugs, stolen cars, other stolen property or robbery. Furthermore, the fact that defendant committed two very minor traffic offenses (Vehicle and Traffic Law, ยง 1202, subd. (a), par. 1, cl. did not justify the police conduct of the very aggressive nature taken in the case. It was clear that the police officers were assigned to the anti-crime unit and were not assigned to traffic duty. There was absolutely no hint on record that the policemen stopped the defendant to issue him a traffic ticket for double parking. Obviously, therefore, the used of the parking violations as a justification for the action taken by them amounted to a mere pretext and the Court elected to treat it as such.

Judgment was reversed, on the law, motion to suppress physical evidence granted, and indictment was dismissed. The findings of fact were affirmed.

The Queens County Criminal Attorneys like Queens County Possession of a Weapon Attorneys and Queens County Drug Attorneys at Stephen Bilkis & Associates are very much capable of assisting you on matters related to cases such as the abovementioned one. We have put up various offices throughout the State of New York so you can easily contact us. Please feel free to come to our office or give us a call.

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