People v. Dinkins

Appellate Division of the Supreme Court of New York

People v. Dinkins

69 A.D.2d 384, 418 N.Y.S.2d 627, 1979 N.Y. App. Div. LEXIS 11820

Appellate Division of the Supreme Court of the State of New York·Decided July 12, 1979·Published·Cited by 2 cases

Opinions

OPINION OF THE COURT

Bloom, J.

The factual background of this case is fully set forth in the opinion of my brother Fein. I agree that the cross-examination of defendant on his failure to register a complaint against Kurt, particularly in light of the emphasis given to the matter by the question put by the court, deprived defendant of his Fifth Amendment rights. It was, therefore, error so egregious as to mandate reversal. The cross-examination of his brother on the same subject, although improper, was error to a lesser degree and could have been cured by appropriate instruction (see concurring opn in People v Burgos, 69 AD2d 783). None was forthcoming.

However, I cannot agree that, given the facts here presented, the search of the car was improper. This was not a case involving the indiscriminate stop of a motor vehicle (Delaware v Prouse, 440 US 648; People v Ingle, 36 NY2d 413); nor did it entail the full-blown search which was the subject of People v Bluitt (33 NY2d 997); nor did it involve information allegedly anonymously transmitted, of which there was no record and which was susceptible of subsequent tailoring to conform to the objective circumstances found (People v Horowitz, 21 NY2d 55). Here, there was a 911 record. Although the printout was never introduced in evidence, it was present in court and used to refresh the recollection of the police officers. Here, the objective circumstances conformed to the information transmitted to the arresting officer by the 911 radio call. Hence, it makes little difference whether or not the car door was opened before defendant was questioned, for, in last analysis, the police officers would have had to proceed as they did.

Inasmuch as there existed a proper predicate for police action and the action taken was reasonable under the circumstances (People v Williams, 41 NY2d 65), the search was not improper.

[386] Accordingly, the judgment should be reversed and the case remanded for a new trial.

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OPINION OF THE COURT

Bloom, J.

The factual background of this case is fully set forth in the opinion of my brother Fein. I agree that the cross-examination of defendant on his failure to register a complaint against Kurt, particularly in light of the emphasis given to the matter by the question put by the court, deprived defendant of his Fifth Amendment rights. It was, therefore, error so egregious as to mandate reversal. The cross-examination of his brother on the same subject, although improper, was error to a lesser degree and could have been cured by appropriate instruction (see concurring opn in People v Burgos, 69 AD2d 783). None was forthcoming.

However, I cannot agree that, given the facts here presented, the search of the car was improper. This was not a case involving the indiscriminate stop of a motor vehicle (Delaware v Prouse, 440 US 648; People v Ingle, 36 NY2d 413); nor did it entail the full-blown search which was the subject of People v Bluitt (33 NY2d 997); nor did it involve information allegedly anonymously transmitted, of which there was no record and which was susceptible of subsequent tailoring to conform to the objective circumstances found (People v Horowitz, 21 NY2d 55). Here, there was a 911 record. Although the printout was never introduced in evidence, it was present in court and used to refresh the recollection of the police officers. Here, the objective circumstances conformed to the information transmitted to the arresting officer by the 911 radio call. Hence, it makes little difference whether or not the car door was opened before defendant was questioned, for, in last analysis, the police officers would have had to proceed as they did.

Inasmuch as there existed a proper predicate for police action and the action taken was reasonable under the circumstances (People v Williams, 41 NY2d 65), the search was not improper.

[386] Accordingly, the judgment should be reversed and the case remanded for a new trial.

People v. Dinkins, 69 A.D.2d 384, 418 N.Y.S.2d 627, 1979 N.Y. App. Div. LEXIS 11820 (N.Y. Ct. App. 1979).

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