People v. Castro

101 A.D.2d 392, 475 N.Y.S.2d 840, 1984 N.Y. App. Div. LEXIS 17831
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 15, 1984
StatusPublished
Cited by13 cases

This text of 101 A.D.2d 392 (People v. Castro) 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. Castro, 101 A.D.2d 392, 475 N.Y.S.2d 840, 1984 N.Y. App. Div. LEXIS 17831 (N.Y. Ct. App. 1984).

Opinions

OPINION OF THE COURT

Ross, J. P.

The New York Drug Enforcement Task Force (Task Force) is composed of law enforcement officers who are assigned from the Federal Government, the New York State Police and the New York City Police Department. Its principal assignment is to conduct long-term narcotics investigations of selected targets. For several months prior to February 28, 1979, the Task Force had been investigating the activities of Ramon Zurita (Zurita) and Nick Perez (Perez).

[393]*393Based upon information received by the Task Force, Zurita was allegedly going to make a drug sale on the evening of February 28, 1979, from premises 53 Bruckner Boulevard in The Bronx. In anticipation of this act taking place, the Task Force set up an observation post in an unmarked police van parked directly across the street from those premises. This van was equipped with one-way mirrors and various communication devices. It was manned by New York State Police Investigators Donald L. Rohrmann (Rohrmann) and George Le Moine (Le Moine).

Fifty-three Bruckner Boulevard had three doors leading into it. On the extreme left, there was a large open bay door that led into the supply room of a beer distributorship. In the middle there was a roll top door, which was closed to within a foot of the bottom, and this door led into the distributorship’s office. Finally, on the extreme right, there was a door that led into upstairs apartments.

At about 7:15 p.m., Rohrmann and Le Moine testified that they saw defendant and Zurita come out of the extreme right-hand door. Prior to that moment, defendant had been unknown to the Task Force. Zurita and defendant walked over to the open door to the supply room, where they conversed for a few minutes, until Zurita left defendant and went into the distributorship’s office. Defendant continued to stand by the open door. Within 5 to 10 minutes, Zurita left the office and returned to the open door to talk further with defendant. After a few minutes, Zurita left defendant in front of the open door, and Zurita re-entered the door leading to the apartments. During the next hour or so, Rohrmann and Le Moine watched as the defendant spoke with approximately 25 to 30 persons, before each one of these persons entered one of the three doors, mentioned supra, that led into the subject premises. These persons would remain inside a little while and then leave the area.

Around 8:40 p.m., three undercover officers, who were assigned to the Task Force, appeared on the scene in an unmarked car, which they parked down the street from 53 Bruckner Boulevard. Two of these undercover officers exited this car and approached the defendant. They spoke to the defendant briefly and then went back to their car.

[394]*394Some minutes later Zurita appeared back on the street and went over to defendant. A short conversation ensued between them. Now Zurita went over to the car where the three undercover officers were, and spoke to them. As a result of this conversation, two of the undercover officers exited the car and followed Zurita through the door leading into the apartments. At about 8:55 p.m., one of these two undercover officers reappeared on the street and he was joined there by the third undercover officer, who heretofore had remained in the unmarked car. These officers now walked toward the subject premises. When they reached them, a prearranged signal was given by a Task Force field supervisor. Thereafter, all of the backup teams, including Rohrmann and Le Moine, converged on 53 Bruckner Boulevard for the purpose of making arrests in connection with an alleged drug sale that had been made by Zurita.

Rohrmann and Le Moine got out of their van and ran over to the open door where the defendant and two men were standing. They identified themselves as police officers. The defendant, and the two men with him, were told to turn around and put their hands up against the cartons along the supply room wall. According to Rohrmann’s trial testimony: “when [defendant] raised his hands above his head, the top of his jacket * * * came up over his belt and I [Rohrmann] observed * * * the butt of a handgun. I yelled, ‘Look out, he’s got a gun,’ and at this time * * * Le Moine turned around at the same time [defendant] was bringing his right arm down towards the handgun * * * Le Moine grabbed his arm and twisted it away from the weapon, and we wrestled him to the ground, took the gun, and placed handcuffs on him, told him he was under arrest”.

The weapon recovered from the defendant was an operable Smith and Wesson .38 calibre revolver, which was loaded with five rounds of ammunition.

After defendant’s arrest, Le Moine advised defendant of his Miranda rights and searched him. In the course of this search Le Moine found a plastic envelope, which contained a white powder. An analysis of this powder indicated that it was cocaine and weighed just under two ounces, to wit: 56.04 grams. Defendant told Le Moine that he neither worked nor lived at the subject location.

[395]*395Subsequently, defendant was indicted for his possession of the revolver and the cocaine.

The defendant testified in his own behalf. In substance, his defense was that he just happened to be present during the raid. He said he regularly jogged from 149th Street and the Grand Concourse in The Bronx to 99th Street in Manhattan and he would pass 53 Bruckner Boulevard. The night of the raid was the first time he had ever stopped at that location and that he paused there at about 8:00 p.m. to buy a soda from the beer distributorship. He drank the soda in front of the open door, while standing on the sidewalk. At about 8:15 p.m., Zurita, whom he did not previously know, asked him whether the soda was cold and then they talked together for about 15 minutes, at which time Zurita left. As defendant continued to stand on the sidewalk with a couple of other men, Rohrmann and Le Moine ran up and pushed the three of them into the supply room. When Le Moine took the gun away from defendant, allegedly Le Moine and Rohrmann hit him. Defendant contended that Le Moine told him that the subject gun belonged to a police officer. In his testimony, defendant explained that he had obtained the gun about a month before, when he allegedly took it away from an alleged robber, who claimed to be a police officer. However, defendant admitted he neither reported this alleged robbery nor his possession of the gun to the police. Also, defendant denied that he possessed the cocaine that Le Moine had testified he found, when he searched defendant.

Without defense objection, the People called three rebuttal witnesses. In total, their testimony took up only 17 pages in a 461-page transcript. In rebuttal, (1) Le Moine and Rohrmann testified that they never struck defendant, other than during the struggle over the gun that the defendant admitted he possessed; (2) Le Moine denied telling the defendant that the defendant’s gun formerly belonged to a police officer; and, (3) both Le Moine and Rohrmann denied, based upon their examination of the beer distributorship and its supply room, that there was any soda in that location on the night of the arrest.

The third rebuttal witness was Santiago Martinez (Martinez), who is a New York City police officer assigned to the [396]*396Task Force. Martinez testified that he was one of the three undercover officers in the unmarked car. Furthermore, he testified that he and another officer got out of the car at about 8:40 p.m.

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Cite This Page — Counsel Stack

Bluebook (online)
101 A.D.2d 392, 475 N.Y.S.2d 840, 1984 N.Y. App. Div. LEXIS 17831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-castro-nyappdiv-1984.