People v. Allen

Appellate Division of the Supreme Court of New York

People v. Allen

280 A.D.2d 270, 720 N.Y.S.2d 72, 2001 N.Y. App. Div. LEXIS 879

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 1, 2001

StatusPublished

Cited by1 cases

This text of 280 A.D.2d 270 (People v. Allen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Allen, 280 A.D.2d 270, 720 N.Y.S.2d 72, 2001 N.Y. App. Div. LEXIS 879 (N.Y. Ct. App. 2001).

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Opinion

—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered April 6, 1998, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

Defendant’s motion to suppress a pistol recovered from his backpack was properly denied. Initially, we conclude that the police had reasonable suspicion justifying a stop and frisk of defendant. Upon receipt of a radio communication that two described men, one of whom had a gun, were selling drugs at a specified location, the police encountered defendant and another man near the location, apparently counting money. The record sufficiently establishes that the source of this information was the personal observations of an identified citizen-witness participating in a “block-watcher” program. In any event, even if this had been an anonymous tip, it was corroborated by the police observation suggesting the aftermath of a drug transaction (see, Florida v J.L., 529 US 266). The joint description was sufficiently detailed and accurate to warrant a reasonable conclusion that these were the described men, given the close spatial and temporal proximity, the complete absence of anyone else at or near the scene, and the fact that money was apparently being counted (see, People v Brown, 254 AD2d [271]*27188, lv denied 92 NY2d 980; People v Morales, 246 AD2d 396, lv denied 91 NY2d 943).

The police first frisked defendant’s companion and recovered a revolver. Then, in the course of patting down defendant, the officer removed his backpack and felt a hard, heavy object suggesting a firearm therein. Based on the totality of these circumstances, the police clearly had a reasonable fear that their safety required inspection of the contents of the bag, as part of the lawful stop and frisk (see, People v Moore, 32 NY2d 67, cert denied 414 US 1011). Moreover, the record also supports the court’s finding that the recovery of the first weapon from the companion provided probable cause for defendant’s arrest. The facts warranted the conclusion that defendant was in constructive possession of the first weapon, an instrumentality of their joint criminal enterprise (see generally, Brinegar v United States, 338 US 160, 175; cf., People v Mosley, 68 NY2d 881, cert denied 482 US 914). Accordingly, the search of defendant’s backpack revealing a second weapon which turned out to be a semi-automatic 9 millimeter pistol was also justified as incident to a lawful arrest (People v Wylie, 244 AD2d 247, lv denied 91 NY2d 946). Concur — Mazzarelli, J. P., Andrias, Wallach, Lerner and Rubin, JJ.

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—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered April 6, 1998, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

Defendant’s motion to suppress a pistol recovered from his backpack was properly denied. Initially, we conclude that the police had reasonable suspicion justifying a stop and frisk of defendant. Upon receipt of a radio communication that two described men, one of whom had a gun, were selling drugs at a specified location, the police encountered defendant and another man near the location, apparently counting money. The record sufficiently establishes that the source of this information was the personal observations of an identified citizen-witness participating in a “block-watcher” program. In any event, even if this had been an anonymous tip, it was corroborated by the police observation suggesting the aftermath of a drug transaction (see, Florida v J.L., 529 US 266). The joint description was sufficiently detailed and accurate to warrant a reasonable conclusion that these were the described men, given the close spatial and temporal proximity, the complete absence of anyone else at or near the scene, and the fact that money was apparently being counted (see, People v Brown, 254 AD2d [271]*27188, lv denied 92 NY2d 980; People v Morales, 246 AD2d 396, lv denied 91 NY2d 943).

The police first frisked defendant’s companion and recovered a revolver. Then, in the course of patting down defendant, the officer removed his backpack and felt a hard, heavy object suggesting a firearm therein. Based on the totality of these circumstances, the police clearly had a reasonable fear that their safety required inspection of the contents of the bag, as part of the lawful stop and frisk (see, People v Moore, 32 NY2d 67, cert denied 414 US 1011). Moreover, the record also supports the court’s finding that the recovery of the first weapon from the companion provided probable cause for defendant’s arrest. The facts warranted the conclusion that defendant was in constructive possession of the first weapon, an instrumentality of their joint criminal enterprise (see generally, Brinegar v United States, 338 US 160, 175; cf., People v Mosley, 68 NY2d 881, cert denied 482 US 914). Accordingly, the search of defendant’s backpack revealing a second weapon which turned out to be a semi-automatic 9 millimeter pistol was also justified as incident to a lawful arrest (People v Wylie, 244 AD2d 247, lv denied 91 NY2d 946). Concur — Mazzarelli, J. P., Andrias, Wallach, Lerner and Rubin, JJ.

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280 A.D.2d 270, 720 N.Y.S.2d 72, 2001 N.Y. App. Div. LEXIS 879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-allen-nyappdiv-2001.

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