People v. Chestnut

69 A.D.2d 41, 418 N.Y.S.2d 390, 1979 N.Y. App. Div. LEXIS 11325
Appellate Division of the Supreme Court of the State of New York·Decided July 10, 1979·Published·Cited by 4 cases

Opinions

OPINION OF THE COURT

Sullivan, J.

At issue is the propriety of the denial of defendant’s motion to suppress physical evidence, and statements made by him contemporaneously with the seizure of a gun and at the station house after his arrest. Subsequent to the denial of his motion defendant entered a plea of guilty.

The following facts were adduced at the suppression hearing. On the evening of January 4, 1977, at 8:45 p.m. police officers Dieterich and Stryker, assigned to an anticrime unit, were in plainclothes in an unmarked taxi. Stryker was the operator. Driving south on West End Avenue, they observed a Black male and a white male and female huddled in apparent conversation in a phone booth at the corner of 64th Street. Their suspicions aroused, the officers made a U-turn and stopped at 63rd Street from which vantage point they observed the individuals for about one minute. The Black male, subsequently identified as Anthony Hernandez, left the booth and walked south to 63rd Street. As he walked away he was observed turning his head several times and looking over his [44]*44shoulder. Hernandez turned east onto 63rd Street, but returned to the corner and peeked back „m the direction of the phone booth.

Dieterich left the taxi and followed Hernandez for a few steps on 63rd Street, and observed him enter a playground which was part of a housing project. Dieterich then returned to the taxi and the officers drove north on West End Avenue, made a right at 64th Street and drove east for a half block, stopping by the north side of the playground. Dieterich again got out of the taxi, this time to see if he could find the other male and female who had been seen earlier in the phone booth. Stryker, who had Hernandez under observation in the playground, saw him engaged in apparent conversation with the defendant Chestnut, and he observed Hernandez hand something to Chestnut. At about this time, Stryker received a radio transmission of a robbery at 64th Street and West End Avenue. The perpetrator was described as a young, Black male wearing a blue jacket and a black flop hat, and armed with a silver gun. Stryker called Dieterich back to the taxi and informed him of the radio report. The officers agreed that Hernandez fitted the description.

As the officers spoke they noticed Hernandez and Chestnut walking out of the playground towards the taxi. As they approached they looked at Dieterich and Stryker and then abruptly reversed direction and returned to the playground. Dieterich told Stryker to transmit an alarm that they were were following a possible suspect in the robbery and then followed the pair into the playground where they were joined by a female. The trio then walked from the playground through the housing project towards Amsterdam Avenue. Stryker drove around the corner to Amsterdam Avenue and exited the taxi. He attempted to contact his communications dispatcher on his portable radio, but failed to receive an acknowledgment. As he walked south along Amsterdam Avenue he observed Hernandez and Chestnut, accompanied by the female, walking out of the project in his direction. As the group approached, Stryker identified himself as a police officer, showed his shield and, with revolver drawn, shouted: "Police Officer, freeze. Don’t move, lay down on the ground.” Hernandez and Chestnut turned and saw Dieterich behind them, and then lay down. The female stepped aside. While . they were on the ground Dieterich asked: "Where is the gun?” Chestnut answered "it’s right here”, and pointed to his right-[45]*45hand pocket. Dieterich reached into the pocket and removed a silver-plated revolver. Hernandez and Chestnut were then arrested and handcuffed.

Eventually, more police arrived, together with the complaining witnesses, who identified the revolver as the weapon used in the robbery. At the police station, after Chestnut had been given his Miranda warnings, he denied participation in any robbery but admitted ownership of the gun, and claimed that he had let Hernandez hold it.

A subsequent search of Chestnut at the station uncovered three manila envelopes of marihuana and two 5-dollar bills, which Chestnut admitted had been given to him by Hernandez. The complainants had reported that they each had a 5- and a 10-dollar bill taken from them. Two 10-dollar bills were found on Hernandez.

At the close of the hearing, the court found that the police officers had probable cause to arrest Hernandez and that the circumstances justified a frisk of Chestnut, and that no preliminary questions were required, since one of the officers had observed Hernandez pass an object of some type to Chestnut, and the officers were aware that a robbery had taken place. We agree.

One of the most vexing of judicial issues is the delineation of permissible police intrusion upon the liberty of the private citizen in a street encounter. Judges are called upon to balance "the legitimate interests of the defendants against the reasonableness and appropriateness of the police action.” (People v Prochilo, 41 NY2d 759, 761.) Immutable legal abstracts, easily enunciated in an atmosphere conducive to research, reflection and deliberation are applied, less facilely, to the infinite vagaries of human activity, oft-times carried out in a caldron of emotion. The central figure in these confrontations and whose conduct it is that we are asked to judge is the police officer, who is faced with the daily possibility that any incident might become a life or death situation, with little or no time for reflection, let alone deliberation.

CPL 140.50 (subd 3) authorizes police officers to frisk an individual, whom they have stopped for an explanation of his conduct, if they reasonably suspect that they are in danger of physical injury. To justify a "self-protective search for weapons”, an officer "must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” (Sibron v New York, 392 US 40, 64.)

[46]*46Whether a police officer’s conduct is reasonable "must necessarily turn on the facts in each individual case” (People v Green, 35 NY2d 193, 195), and is based on how justifiable his suspicions. It has been held that: "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. [Citations omitted.] To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice. [Citations omitted.] Nor will the good faith on the part of the police be enough to validate an illegal interference with an individual [citations omitted].” (People v Cantor, 36 NY2d 106, 112-113.)

The Court of Appeals has identified three preliminary areas of inquiry in the resolution of whether an officer’s actions wére reasonable in the conduct of a frisk which leads to the seizure of a gun: "Was there proof of a describable object or of describable conduct that provides a reasonable basis for the police officer’s belief that the defendant had a gun in his possession? Was the manner of the officer’s approach to the defendant and the seizure of the gun from him reasonable in the circumstances? Was there evidence of probative worth that there had been a pretext stop and frisk or that the police were otherwise motivated by improper or irrelevant purpose?” (People v Prochilo, 41 NY2d 759, 761-762, supra.)

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Chestnut, 69 A.D.2d 41, 418 N.Y.S.2d 390, 1979 N.Y. App. Div. LEXIS 11325 (N.Y. Ct. App. 1979).

69 A.D.2d 41 (People v. Chestnut) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Smith
93 A.D.2d 432 (Appellate Division of the Supreme Court of New York, 1983)
People v. Fernandez
86 A.D.2d 416 (Appellate Division of the Supreme Court of New York, 1982)
People v. Boyd
78 A.D.2d 225 (Appellate Division of the Supreme Court of New York, 1980)
People v. Jackson
72 A.D.2d 149 (Appellate Division of the Supreme Court of New York, 1980)