In a criminal proceeding, a New York Criminal Lawyer said that, a computer store located at West 57th Street between Eighth and Ninth Avenues was burglarized. Police Officer Maselli, on patrol in an unmarked yellow cab, heard a radio run of two Black males who were involved in the burglary. A New York Sex Crimes Lawyer said he proceeded to the scene of the computer crime where he spoke to the doorman of the building in which the store was located. This witness gave him the additional information that the two men were wearing blue jeans and sneakers and had last been seen running west on 57th Street toward Ninth Avenue.
A New York Criminal Lawyer said that, Maselli then began to drive around the area until he reached Eighth Avenue between 47th and 48th Streets, where he saw two Black people wearing jeans and sneakers, walking south. One, a man, was carrying what Maselli believed to be a television set. The other appeared to be female. Maselli stopped the cab approximately twenty feet from them and approached, displaying his shield, while his partner approached from the other side. Without making any inquiry whatsoever, Maselli put the two up against the wall and, after discovering that the “television” which the male put down was actually a computer, placed both under arrest. A New York Sex Crimes Lawyer said the defendants were then taken to the computer crime scene where they were displayed to another witness, Linda Siegfried, who lived in an apartment above the store. After the witness identified them, defendants were taken to the stationhouse and booked; a cord belonging to the computer which Washington had been carrying was recovered from Perry’s pocket.
A New York Criminal Lawyer said that, Maselli testified to an incident prior to his initial arrival at the computer crime scene which allegedly connected Perry and Washington to the crime and explained his subsequent stop of them. Maselli told of seeing “two male blacks” turning into Eighth Avenue from 54th Street, where they had been walking in an easterly direction. One of the men was carrying a television, and it was his recollection of the two which caused him to drive to a more southerly area of Eighth Avenue after interviewing the doorman.
A Nassau County Sex Crimes Lawyer said the defendant, Lonnie Perry was indicted with a co-defendant, one Damian Washington, for burglary in the third degree, grand larceny in the second degree, and criminal possession of stolen property in the third degree. Washington pleaded guilty before written motions were filed, and after Perry failed to appear in court, a bench warrant was issued. Shortly after Perry was involuntarily returned, appointed counsel and the Assistant District Attorney agreed, at a bench conference before the calendar judge, that the defense would be given open file discovery and a Wade hearing without the necessity for written motions. In return, no Mapp hearing would be held.
The issue in this case is whether a court conducting a Wade hearing can consider the constitutionality of a stop which preceded the challenged identification in the absence of a defense motion.
The Court said that, the legality of a stop depends on whether the predicate of information the police possess justifies the degree of intrusion which the stop entail, the various predicate/response tests are fully set forth in one of the cases decided by the Supreme Court, where the court, tracking CPL 140.50, noted that a forcible stop, such as that which occurred here, requires that the police have reasonable cause to believe that the person stopped has committed, is committing, or is about to commit a crime. A Queens Sex Crimes Lawyer said this, of course, is greater than the predicate required to stop and inquire, where the police need only a justified suspicion that criminal activity is afoot.
Underlying these formally stated tests is a concern that the liberty and dignity of citizens should not be undermined without a real, articulable basis in fact, rather than hunch or mere generalized suspicion. Additionally, of course, the Fourth Amendment protects citizens against arbitrary police action in part out of concern that such action may be motivated by racial or other impermissible considerations. It is these fundamental guarantees of the Fourth Amendment, as well as the test of De Bour and its progeny, which were violated in the instant case.
The Court said, believing that a burglary of a computer store had been committed on West 57th Street by two male Blacks who fled in a westerly direction, the police forcibly stopped what Officer Maselli believed to be a male and female Black, carrying a television, some ten blocks away, and east of the burglarized computer store. They made no inquiry of other defendants before the forcible stop was effectuated, although neither Perry nor Washington behaved in a suspicious manner, nor attempted to flee when the police approached. The description which Maselli had, involving only race, sex, blue jeans and sneakers was as sparse, non-specific and subject to mistake and abuse as is imaginable. There was no height, weight, physical disability, unusual clothing, facial characteristics, nor anything else which would distinguish the perpetrators from any two other Black males within twenty blocks.
The Court held that, a bare description, without more, such as suspicious conduct indicating the possession of a weapon, or attempted flight, will not justify the highly intrusive conduct of the police in stopping two defendants, requiring them to put their hands up, and frisking them. Finally, and most damning, in Maselli’s eyes Perry did not even match the gender of the burglars he was seeking. Far from fitting the description given by the doorman, and heard on the radio run, Perry’s appearance directly contradicted it. Hence, the Court held that Officer Maselli clearly lacked “reasonable cause” to believe that Perry had participated in the computer store burglary.
The Court Further held that, since the stop was unconstitutional, both the subsequent show up identification and the computer card constitute “fruit of the poisonous tree” which must be suppressed.
CPL Sections 255.20(1) and (3) describe the procedure which criminal defendants must follow in seeking various forms of pretrial relief, including the suppression of illegally obtained evidence and statements. The statute was designed to combine fairness and constitutionality by not foreclosing motions if good cause and the interests of justice require their resolution.
The Court said that the instant case falls somewhere on the borderline between the mandatory and discretionary standards of the statute. While defense counsel knew that the People intended to introduce physical evidence seized from the defendant, had access to the radio run heard by the arresting officers, and also knew that defendant was a transvestite, it was not until Officer Maselli testified at theWade hearing that the officer’s knowledge and understanding critical to the determination of appropriate predicate/response was revealed. Thus it is at least arguable that Maselli’s belief that he was arresting a female like grounds first obtained through Rosario material could not have been discovered until the officer actually testified at the Wade hearing.
Whether or not the present case comes directly within the mandatory standard, enough has been shown to meet the “good cause and interests of justice” test. Assuming arguendo, that waiver was found and a conviction obtained, the failure to make any written motions, although explicable in context, might well give rise to a post-conviction claim of inadequate assistance and a possible reversal. Finally, having heard the evidence, the Court finds that the defendant’s Fourth Amendment rights were violated. Holding that violation “waived” by counsel’s failure to strictly comply with statutory time requirements would fail to vindicate society’s interest in constitutional police activity and would impose a double injustice on the defendant.
For all these reasons, the Court finds that the failure to timely raise the constitutionality of the police stop in question does not waive determination of the Dunaway issue presented by this hearing and that, since the stop violated the Fourth Amendment, the subsequent identification and evidence secured must be and are suppressed.
Any evidence obtained through a “fruit of the poisonous tree” is susceptible of suppression. If you are facing grand larceny charges, you need the assistance of a New York Criminal Lawyer to protect your constitutional rights. Stephen Bilkis and Associates can provide you with our New York White Collar Attorneys to represent your day in Court.