People v. Foster

91 A.D.2d 1046, 458 N.Y.S.2d 645, 1983 N.Y. App. Div. LEXIS 16370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1983
• Status: Published

Opinions

— Appeal by defendant from a judgment of the Supreme Court, Westchester County (McMahon, J.), rendered October 18,1979 and October 23, 1979, convicting him of murder in the second degree and robbery in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant’s motion to suppress evidence. Judgment reversed, on the law, motion granted to the extent that the razor seized from the defendant is suppressed, and new trial ordered. On January 20, 1979 two men forced their way into the Yonkers apartment of Cornell Moon. In the course of the robbery that followed, one of the perpetrators seized Moon’s son, placing a knife or razor to his throat. The other perpetrator shot and killed Moon. The next day, Detective Anthony Cerasi was told by a confidential informant that two men who had been involved in the Moon homicide and in an earlier robbery were in an apartment on Locust Hill Avenue in Yonkers. Acting solely upon this information, the detective and several other officers went to the apartment where they found Raymond Pittman and defendant James Foster. At a pretrial suppression hearing, Detective Cerasi described the ensuing events as follows: “I advised [the defendant] that they were being taken to headquarters under suspicion of robbery, and homicide, at which time he said, T guess you are going to search me,’ and advised me he had a razor in his pocket, at which time I put my hand in his right front pocket and removed his razor.” After Cerasi seized the razor, Linda and Craig De Frietas arrived at the apartment and told the detective that they were the tenants. The officers thereupon searched and handcuffed the defendant, Pittman, and Craig De Frietas and took them and Linda De Frietas to police headquarters. It was later learned that Mrs. De Frietas was the defendant’s sister. In the course of the subsequent investigation, Pittman was identified by Moon’s son as one of the perpetrators, and two search warrants were issued leading to the seizure of tangible evidence. The defendant and Pittman were thereafter jointly indicted, inter alia, for the Moon homicide. As against the defendant, the indictment rested largely upon the Grand Jury testimony of his sister, Linda De Prietas, who recounted statements made by the defendant admitting his participation in the homicide. Both the defendant and Pittman were convicted of murder and robbery after a jury trial. On his appeal from the conviction, Pittman challenged the legality of his detention by Detective Cerasi. We found that Pittman had been “searched, handcuffed, and transported to police headquarters, thus suffering an intrusion upon his liberty which, no matter how denominated by the police, was indistinguishable from a traditional arrest and hence required probable cause” (People v Pittman, 83 AD2d 870, 871). Concluding that the People had failed to establish probable cause, we held that Pittman had been subjected to an unlawful arrest. Since the circumstances are identical, we reach the same conclusion with respect to the defendant, and hold that, as a consequence of the unlawful arrest, the razor seized from him should have been suppressed. The People argue that, notwithstanding the unlawful arrest, suppression of the razor is not required because it was discovered as a result of the defendant’s spontaneous statement. We disagree. The defendant’s statement leading to the seizure of the razor was not a free and unprovoked act, independent of the unlawful police conduct (cf. People v Boodle, 47 NY2d 398; People v Townes, 41 NY2d 97). Rather, it followed and was a direct product of Detective Cerasi’s announcement that the defendant was to be taken to police headquarters under suspicion of robbery and homicide. That announcement marked the initiation of the unlawful arrest, and the statement was plainly made in anticipation of the search which followed. Accordingly, since the razor was revealed as a direct consequence of unlawful police action, it was tainted evidence and should have been suppressed (see, e.g., People v Cantor, 36 NY2d 106, 114; People v Baldwin, 25 NY2d 66; People v Loria, 10 NY2d 368). The defendant additionally contends that the court erred at trial by failing to prohibit the prosecutor from impeaching his own witness, the defendant’s sister, Linda De Prietas. In view of our determination that a new trial is required, we need not address the defendant’s contention. If, at the retrial, the prosecutor should choose to call Mrs. De Prietas as a witness, any question regarding her possible impeachment will be decided under appropriate criteria at the time the issue arises (see CPL 60.35; People v Fitzpatrick, 40 NY2d 44; see, also, People v Fuller, 50 NY2d 628, 638, n 5). Mollen, P. J., Titone and Rubin, JJ., concur.