People v. Grand

110 A.D.2d 539, 488 N.Y.S.2d 158, 1985 N.Y. App. Div. LEXIS 48463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 1985
• Status: Published

Opinions

On April 27, 1982, at 10:30 p.m., Police Officers Louis Christiansen and William Schroh, while on uniformed patrol in a marked radio patrol car, received a radio run of “robbery in progress, man with a gun” at 1784 University Avenue in The Bronx. The cross streets at that location were 176th Street and Macombs Road. While the officers were proceeding south to that location, they received another radio transmission, at about 10:34 p.m., that a male black was still at that location, a Mobil gas station. Officers Christiansen and Schroh arrived at the gas station at about 10:37 or 10:38 p.m. It was raining very hard at the time.

Officer Christiansen, a veteran of 14V2 years, had his gun drawn upon approaching the gasoline station. The officers spoke to the sole attendant on duty, Efraim Roman, who told them that the black male robber was no longer there but had fled towards Macombs Road, towards the rear of the gas station. Mr. Roman told the officers that the robber was a “big black guy” with a gun and, in describing his size, gestured with his hands out to his side almost parallel to the floor, indicating “a rather large individual.”

Officers Christiansen and Schroh exited the gas station on Macombs Road directly opposite 176th Street where it intersects Macombs Road. From the corner, Christiansen observed a couple of black males down the block, approximately 150 to 200 feet from the corner, standing in the doorway of an apartment building at 74 West 176th Street, which was 200 to 300 feet from the Mobil station.

Officer Christiansen testified that this was a designated “robbery target area” which also had a number of other problems, i.e., 75% of the buildings were burned out and/or bricked up; there was a known narcotics area directly east of the building where defendant was arrested; and on nearby Harrison Avenue, stolen cars were “dumped and stripped.”

At the apartment building, there were three steps leading up to a vestibule, and outside that vestibule were four men of medium height and thin to moderate build; inside the threshold of the doorway was defendant, a “tall man”, who stood out above the other four and was larger than the others. Based on the pedigree information supplied by defendant after his arrest, Officer Christiansen listed defendant as being six feet, three inches tall and 260 pounds.

Defendant was holding by the collar, in his left hand, a black midlength overcoat. (There had been a notation on the radio sprint report for 10:41 p.m. that the black male robber was wearing black and had on a black hat. Officer Christiansen vaguely recalled hearing that information on the radio but could not say whether it was before or after he left his vehicle and saw defendant.)

At 10:39 p.m., approximately nine minutes after receiving the original radio run, Officers Christiansen and Schroh exited their marked patrol car with their guns drawn. This precaution was taken based upon the nature of the radio run (armed black male) and the street itself. Officer Christiansen observed defendant, in the vestibule, turn and start walking up the stairs. Upon rounding the vehicle and reaching the sidewalk, Officer Christiansen shouted to defendant to “halt, don’t move.” Defendant stopped and looked over his shoulder. Christiansen then went past his partner and the four black males, entered the vestibule and joined the defendant on the right side of the same step. Officer Schroh, due to the nature of the street situation and the inclement weather, escorted the four black men into the vestibule at gunpoint and stood at the left side of the base of the steps. Officer Christiansen, who had his gun drawn, told defendant, who was holding the coat out to his side, to face him. Defendant complied and started to put the coat down. The defendant was told by Christiansen not to move, and Christiansen conducted an unfruitful frisk of his waist. Officer Christiansen now asked defendant to put the coat down so as to avoid its potential use as a weapon. As the coat came in contact with the marble step, Officer Christiansen heard a “clunk”. He then conducted a fruitless pat down of defendant’s back.

Christiansen, who had made approximately 35 weapon arrests, next went to the coat and felt a small, hard object in the pocket. Believing it to be a gun, he reached in the pocket and retrieved a .32 caliber revolver. The officer then handcuffed and arrested defendant for the possession of the gun. A subsequent search of his right front pocket disclosed two .32 caliber bullets. A search of the other four males and the hallway failed to disclose the fruits of the robbery. The defendant was brought back to the Mobil station, where Roman said he was not the robber.

Under the totality of the circumstances here, the action of the police was entirely reasonable and proper. The radio transmissions, the description of the perpetrator and direction of flight provided by Roman, the proximity in time and location between the occurrence of the robbery and the apartment building where defendant was spotted, and defendant’s act of turning and walking up the stairs, all gave Officer Christiansen reasonable suspicion to believe defendant was the armed perpetrator. As such, the officer was justified in approaching defendant (see, People v De Bour, 40 NY2d 210). The combination of the facts that the officer believed the man was armed, that he and his partner could be outnumbered should the four males standing outside decide to come to defendant’s aid, and that the building was located in a robbery target area consisting of burned-out and bricked-up buildings, justified the officer’s fear for his safety and that of his partner. Thus, the fact that the officer approached defendant with his gun drawn, and then frisked him, was reasonable under the circumstances (People v Chestnut, 51 NY2d 14, cert denied 449 US 1018; People v Benjamin, 51 NY2d 267).

In addition, since the coat, still in defendant’s possession, could have been used as a weapon, the officer acted prudently in ordering defendant to lower it. Upon hearing the “clunk” sound made as the coat pocket came in contact with the marble step, Christiansen, street-wise, and who had made at least 35 arrests, after frisking defendant’s back, properly went to the coat, which remained within the ambit of defendant’s grasp. Since the recovery of the gun from the coat and defendant’s subsequent arrest for possession of the gun were lawful, the search of defendant’s right-front pants’ pocket and the recovery of bullets were incident to a lawful arrest and therefore proper. Concur — Sandler, J. P., and Asch, J.; Fein, J., concurs in a separate memorandum; Kassal, J., concurs in the majority memorandum as well as in the concurring memorandum of Fein, J.