People v. McDougall

48 A.D.2d 802, 369 N.Y.S.2d 443, 1975 N.Y. App. Div. LEXIS 9990

Opinion

Judgment, Supreme Court, New York County, rendered April 25, 1974 (after denial of a motion to suppress dated April 16, 1974, per Birns, J.), convicting defendant, upon a plea of guilty, to the crime of attempt to commit the crime of possession of a weapon as a felony, reversed, on the law, the motion to suppress granted, and the indictment dismissed. On November 27, 1973, at approximately 4:00 a.m., a patrolman observed a group of people standing on the southeast corner of 40th Street and Eighth Avenue drinking wine and blocking the sidewalk. The patrolman directed them to disperse. The defendant, McDougall, was observed on the side of the street, neither drinking wine nor disturbing passing pedestrians. The patrolman nonetheless ordered McDougall to move and, when he failed to do so, he was arrested for disorderly conduct. Defendant at this point stated that he had a gun. In addition to the gun, a hunting knife and handcuffs were recovered from the defendant’s person. The People concede that there was no probable cause to arrest the defendant for disorderly conduct. We agree. However, we further find that the discovery of the weapon was inextricably intertwined with the disorderly conduct arrest and the motion to suppress should have been granted (People v Cantor, 36 NY2d 106). Concur—Tilzer, Capozzoli and Lane, JJ.; Kupferman, J. P., and Nunez, J., dissent and vote to affirm on the suppression opinion of Birns, J.