People v. Hernandez

238 A.D.2d 131, 656 N.Y.S.2d 12, 1997 N.Y. App. Div. LEXIS 3114

Opinions

—Judgment, Supreme Court, New York County (Edward Sheridan, J.), rendered November 19, 1993, convicting defendant after a jury trial, of assault in the first degree and criminal possession of a weapon in the third degree, and sentencing him as a second felony offender to concurrent indeterminate terms of imprisonment of 6 to 12 years and 3x/2 to 7 years, respectively, reversed, on the law, and the matter remanded for a new trial.

The motion court erred in failing to suppress the revolver recovered from defendant’s car, since the police conduct amounted to a search and seizure without probable cause (see, People v Torres, 74 NY2d 224, 230; People v Chapman, 211 AD2d 544, lv denied 85 NY2d 970; People v Young, 207 AD2d 465, 466; People v Aquino, 119 AD2d 464, 465) and did not fall within the "plain view” doctrine (see, Coolidge v New Hampshire, 403 US 443, 465-471; People v Spinelli, 35 NY2d 77, 80-81). The description provided to the arresting officers of the alleged shooter and his companion, male and female Hispanics in a black Hyundai Sonata, the male dressed in black with a mustache, was not specific enough to establish probable cause, especially considering that the car was stopped a significant time and distance away from the scene of the shooting. Nothing occurred after defendant’s car was stopped to escalate the level of suspicion. Moreover, at the time of the questioned search, the passengers had been removed from the car and patted down; thus the officers had no reasonable basis to fear for their immediate safety.

As for the search itself, the officer’s testimony clearly establishes that the circumstances here did not fall within the "plain view” doctrine. Initially he stated that after his sergeant "ordered” him "to do a search” of the vehicle, he looked into the car through the driver’s side door, which had been left open, saw nothing in plain view, but proceeded to place his right hand on the driver’s side floorboard for support and shined a flashlight up behind the dashboard where he found the revolver. Questioned further on this issue, the officer then testified that he placed his right hand on the driver’s side rocker panel to support himself as he shined the flashlight and leaned so that he could peer up behind the dashboard. In either case, the officer’s right hand, at the very least, impermissibly breached the plane of the car doorway, i.e., the interior of the car, in order for him to be able to peer deeply enough inside

* to observe an item concealed up under or behind the dashboard. Such conduct amounted to a search without probable cause (see, People v Chapman, supra; People v Young, supra). Consequently, the firearm should have been suppressed and defendant’s conviction must be reversed, since absent the firearm as evidence at trial, it is questionable whether defendant would have been convicted on either count (see, People v Gonzalez, 88 NY2d 289, 297). Concur—Murphy, P. J., Wallach and Williams, JJ.

It should be noted that the search took place at night, at approximately 2:15 a.m.