People v. Bolden

Appellate Division of the Supreme Court of New York

People v. Bolden

30 A.D.3d 295, 818 N.Y.S.2d 35

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

DecidedJune 22, 2006

StatusPublished

This text of 30 A.D.3d 295 (People v. Bolden) 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. Bolden, 30 A.D.3d 295, 818 N.Y.S.2d 35 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, New York County (Arlene Silver-man, J.), rendered November 15, 2004, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The court properly denied defendant’s suppression motion. As defendant concedes, the officer conducted a proper level-one request for information because defendant and his companion were carrying heavy-looking garbage bags at 2:30 a.m. When defendant’s companion evinced a consciousness of guilt by spontaneously assuming the “spread eagle” or “frisk” position even before the officer, who was exiting his unmarked car, had said anything (see People v Wigfall, 295 AD2d 222 [2002], lv denied 99 NY2d 540 [2002]), and when defendant and his companion gave illogical and implausible answers to the officer’s questions, this created a founded suspicion on the officer’s part that criminal activity was afoot, entitling him to exercise the common-law right of inquiry by asking to look inside the bags (see People v De Bour, 40 NY2d 210, 223 [1976]; People v Ward, 22 AD3d 368 [2005], lv denied 6 NY3d 782 [2006]); People v McPherson, 286 AD2d 616 [2001], lv denied 97 NY2d 685 [2001]).

The challenged portions of the prosecutor’s cross-examination of defendant were generally within the bounds of permissible [296]*296advocacy, and contained nothing that was so egregious as to deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133, 136, 142 [1997], lv denied 91 NY2d 976 [1998]). Concur— Saxe, J.E, Marlow, Nardelli, Catterson and McGuire, JJ.

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Judgment, Supreme Court, New York County (Arlene Silver-man, J.), rendered November 15, 2004, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The court properly denied defendant’s suppression motion. As defendant concedes, the officer conducted a proper level-one request for information because defendant and his companion were carrying heavy-looking garbage bags at 2:30 a.m. When defendant’s companion evinced a consciousness of guilt by spontaneously assuming the “spread eagle” or “frisk” position even before the officer, who was exiting his unmarked car, had said anything (see People v Wigfall, 295 AD2d 222 [2002], lv denied 99 NY2d 540 [2002]), and when defendant and his companion gave illogical and implausible answers to the officer’s questions, this created a founded suspicion on the officer’s part that criminal activity was afoot, entitling him to exercise the common-law right of inquiry by asking to look inside the bags (see People v De Bour, 40 NY2d 210, 223 [1976]; People v Ward, 22 AD3d 368 [2005], lv denied 6 NY3d 782 [2006]); People v McPherson, 286 AD2d 616 [2001], lv denied 97 NY2d 685 [2001]).

The challenged portions of the prosecutor’s cross-examination of defendant were generally within the bounds of permissible [296]*296advocacy, and contained nothing that was so egregious as to deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133, 136, 142 [1997], lv denied 91 NY2d 976 [1998]). Concur— Saxe, J.E, Marlow, Nardelli, Catterson and McGuire, JJ.

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30 A.D.3d 295, 818 N.Y.S.2d 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bolden-nyappdiv-2006.

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