People v. Fernandez

86 A.D.2d 416, 449 N.Y.S.2d 997, 1982 N.Y. App. Div. LEXIS 16088
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 13, 1982
StatusPublished
Cited by2 cases

This text of 86 A.D.2d 416 (People v. Fernandez) 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. Fernandez, 86 A.D.2d 416, 449 N.Y.S.2d 997, 1982 N.Y. App. Div. LEXIS 16088 (N.Y. Ct. App. 1982).

Opinions

OPINION OF THE COURT

Ross, J.

The predicate for the police activities during the late evening hours of August 3, 1979, and the early morning hours of August 4, was an anonymous call to the police emergency number — 911. The unidentified caller stated that a 5 foot, 10 inch tall, Hispanic male, with an Afro hairstyle wearing light blue pants and a light colored T-shirt, was observed at the intersection of 96th Street and Amsterdam Avenue, carrying a gun wrapped in a white shirt. The subsequent radio transmission to officers on the street relayed that there was a man with a gun at the aforesaid location and provided the above description.

[417]*417Two uniformed officers, Joseph Lisi and George Fourcell, who had, respectively, 12 years and 5 years of police service, immediately responded. Both officers recalled receiving this radio message around midnight on August 3. They remembered this detail because they had just started their tour of duty, which commenced shortly before midnight. At the designated intersection, the officers observed approximately five other people standing about, none of whom matched the description provided, and none of whom were carrying a white shirt. The officers then saw defendant walking on Amsterdam Avenue between 96th and 95th Streets in a southerly direction, away from the patrol car. Defendant was carrying a white shirt in his right hand. In addition, he was wearing a white or “light colored” short sleeve shirt, which, after defendant’s arrest, was found to be a banlon shirt with a small, round collar. One could easily have assumed this to be a T-shirt.

Officer Fourcell exited from the car and followed defendant on foot. Officer Lisi drove ahead of defendant and saw him turn into 95th Street. Once on this side street, defendant ascended the front three steps of the first building. Lisi emerged from the patrol car and saw defendant bend over and attempt to open the front door with his left hand and, with his right hand, attempt to place the white shirt he was carrying on the ground. At that moment, Lisi approached, his gun bolstered, and placed his hand on the white shirt, which defendant was now attempting to discard, and felt a hard object thereunder. The defendant would place emphasis on the fact that this officer did not identify himself, despite the fact that he was in uniform. A few seconds later Lisi’s partner approached and, with gun drawn, directed defendant, who was then engaged in a struggle with Police Officer Lisi, not to move. The officers recovered a loaded black .22 calibre revolver from the shirt and it is this physical evidence which defendant seeks to suppress.

Police Officers John O’Connor and Thomas Slater, who were patrolling in an unmarked vehicle, also responded to the radio transmission of a man with a gun. These officers remembered that this incident took place at about midnight of August 3. Arriving at 95th Street and Amsterdam [418]*418Avenue, Officer Slater exited the car and ran up the steps to help the other officers who were still struggling with defendant. Slater grabbed defendant by one arm and, as defendant attempted to reach into his waistband, this officer slapped defendant once with his left hand, which was open and not clenched in a fist. Defendant continued to struggle with these officers, who now numbered three, and to curse at them until he was handcuffed and placed into the radio car. Once in this vehicle, and after the appropriate preinterrogation warnings had been given, defendant stated, “I didn’t do anything.”

Defendant’s version of this incident, which was rejected by the jury, differs greatly. At trial, Fernandez asserted that he was at that particular building on West 95th Street at approximately 9:00 p.m. in order to look for an apartment with heat since winter was soon approaching. Apparently, the jury found it difficult to believe that defendant was seeking an apartment with heat during the middle of the summer. In addition, defendant testified that he undertook this excursion at 9:00 p.m., approximately three hours before Officers Lisi and Fourcell came on duty. In any event, he rang the front door bell, and after no one answered, he descended the stairs. He testified that at the street level a man ran up to him and placed a gun to his neck. Defendant maintained that he believed that he was being robbed, despite the fact that the alleged assailant was dressed in a uniform of a New York City policeman and had just exited from a marked police vehicle. Defendant’s theory for robbery was based on the fact that he had just learned that the owner of an adjacent dry cleaning establishment summoned the police in order to break up a street fight. Defendant thought that the person who first approached him was one of the combatants in this alleged struggle. However, the officers who testified at trial observed no disturbance on the street, nor did they observe any commercial establishments nearby. In any event, defendant asserted that he did not witness this fight but he did see several people flee. One individual, who ran past defendant, had a “bushy” Afro hairstyle. The defendant also saw this person discard a white object, similar to a white piece of paper. The defendant did not hear a noise as [419]*419this white object struck the ground. At this point, a second man approached the defendant holding the white object and struck him several times with the butt of a gun.

Defendant urges that the activities of the police were equivalent of an arrest. We do not agree. The conduct of the authorities on the night of this incident are more closely analogous to a “stop and frisk”. Even though an individual is seized, as was the defendant herein, not every encounter of this nature constitutes an arrest. “[W]hen the intrusion involved is of sufficient magnitude, an ‘arrest’ will be said to occur” (People v Chestnut, 51 NY2d 14, 20); here the actions of Officers Lisi and Fourcell were sufficiently limited so that no arrest actually took place.

The officers were responding to a volatile situation of a “man with a gun”, and, indeed, this street encounter could have been life threatening. At the described location the officers observed defendant wearing a light colored shirt, and at midnight the color of a shirt and whether a shirt has a small collar, are not features easily discernable. In any event, these officers observed defendant carrying a white shirt in his hand, which conformed to the radio transmission. This transmission indicated that a gun was concealed in the shirt. The officers testified that defendant was the only person on the street at that time who was carrying such an object. The dissent minimizes this fact and places undue emphasis on a height differential and a different hairstyle from that in the radio call. It is common knowledge that descriptions are rarely a picture image of a subject. Even trained observers will disagree, particularly over the height of a person. But these differences do not negate the fact that the police were presented with a situation which required immediate action. At the place stated in the radio transmission, there appeared but one person, out of several others, who generally resembled the description of the man with a gun. This person, the defendant herein, was, as in the description provided, carrying a white shirt. The first officer, who approached defendant, merely touched the shirt, which defendant was attempting to discard, and upon feeling a hard object, his suspicions, and the accurateness of the radio transmission, were confirmed. The fact that Officer Foúrcell was the second officer [420]

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Related

People v. Washington
182 A.D.2d 520 (Appellate Division of the Supreme Court of New York, 1992)
People v. Dickerson
153 A.D.2d 897 (Appellate Division of the Supreme Court of New York, 1989)

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Bluebook (online)
86 A.D.2d 416, 449 N.Y.S.2d 997, 1982 N.Y. App. Div. LEXIS 16088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fernandez-nyappdiv-1982.