People v. Perel

315 N.E.2d 452, 34 N.Y.2d 462, 358 N.Y.S.2d 383, 1974 N.Y. LEXIS 1482
CourtNew York Court of Appeals
DecidedJune 19, 1974
StatusPublished
Cited by97 cases

This text of 315 N.E.2d 452 (People v. Perel) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Perel, 315 N.E.2d 452, 34 N.Y.2d 462, 358 N.Y.S.2d 383, 1974 N.Y. LEXIS 1482 (N.Y. 1974).

Opinions

Chief Judge Breitel.

Defendant appeals from a conviction for abortion in the second degree, after a jury trial (Penal Law, § 125.40). He was sentenced on five counts to concurrent terms of up to four years imprisonment.

Defendant contends that slips of paper, listing women upon whom he had performed abortions, were obtained by illegal search and seizure. The conviction should be affirmed. The search and seizure of the slips of paper from a police property envelope, in which defendant’s possessions previously on his person had been placed after arrest, was reasonable. The search and seizure did not, either in nature, intensity or duration, intrude upon defendant’s reasonable expectation of privacy.

On April 20, 1970, the Buffalo Police Department received a call from a hospital about an abortion. At the hospital, a physician informed the responding officer that a particular young woman had been the subject of an abortion. The officer reported the information to the police homicide office without further investigation.

The next morning a detective and a policewoman interviewed the young woman at the hospital. She informed them that the abortion, performed in a private apartment, had been arranged by telephone with a person called ‘ ‘ Gary the Foot ’ ’. She gave them a slip of paper with Gary’s telephone number, and described the man who had performed the abortion as about 35 years of age, tall, and husky. The telephone number proved to be that of one Gary Faulman.

On the evening of the day when the young woman had been questioned, the police interviewed Faulman at the police station. A detective noted that Faulman had a club foot, suggestive of the epithet used to describe the man who had arranged the abortion. Faulman admitted making the arrangements. He also told the police that defendant was his “ contact ” and gave them defendant’s address and telephone number. Faulman described defendant as being six-foot one-inch tall, 200 pounds, [465]*465with dark hair, and a prominent nose. He characterized defendant’s build as being stocky to heavy. Faulman said that defendant was the one who had performed the abortion, and had performed others as well.

Defendant was arrested at his home at 2:30 a.m. the following morning, given an opportunity to dress and assemble his personal effects, and taken to police headquarters. After being warned of his rights to remain silent and to have counsel, his refusal to answer any questions was honored and he was given an opportunity to telephone his lawyer. During the police station booking, and in accord with general police practice, defendant was asked to empty his pockets. Among his personal effects were six separate singly-folded slips of paper inside an address book. An officer observed the name of the woman who had sustained the abortion on one of the slips.

Defendant’s immediate personal effects, including the address book and slips of paper, were placed inside a clasp envelope and defendant given a detailed receipt. Within a half hour, the officer told a detective about the slips of paper. Promptly, the address book and papers were removed from the envelope.

Depending upon the extent of intrusion upon a person’s privacy, corresponding levels of cause and justification are required. Once a person or his effects have been reduced to custodial control in the law enforcement system his privacy has been intruded upon. The permissible scope of the intrusion, given adequate cause," depends upon the crime involved, the individual characteristics of the accused or suspect, and the point in the investigation or detention at which the intrusion occurs. (Terry v. Ohio, 392 U. S. 1, 16-18.)

The greater the intrusion into the privacy or the restriction of the freedom of the person the greater the justification required (see, e.g., Terry v. Ohio, supra, at pp. 25-26 [“ stop and frisk ”]; People v. Rosemond, 26 N Y 2d 101, 105 [“ stop and frisk ”]; CPL 140.50 [“ stop and frisk ”]; Beck v. Ohio, 379 U. S. 89, 96-97 [arrest]; CPL 140.10, subd. 1 [arrest]; Spinelli v. United States, 393 U. S. 410, 412-413 [house search]; People v. Hendricks, 25 N Y 2d 129, 136-137 [house search]; CPL 690.35 [search warrant]). And, of course, if a greater intrusion is justified, a lesser related intrusion is unobjectionable.

[466]*466The arrest of defendant was based upon probable cause. From the information provided by the abortion subject the police had reason to believe that Faulman had arranged for the abortion. His statements, in turn, were based on his asserted personal knowledge that defendant was involved in the abortion, in one way or another. At this point, the police belief that defendant was the abortionist rested ‘ ‘ on something more substantial than a casual rumor circulating in the underworld or * * * an offhand remark heard at a neighborhood bar ” (Spinelli v. United States, 393 U. S. 410, 416-417, supra). Moreover, the description of defendant by Faulman closely paralleled that of the man described by the woman as performing the abortion. This independent corroboration of the description and the accomplice’s self-inculpating statement involving defendant were sufficient to establish further the reliability of Faulman’s statements (see People v. Wheatman, 29 N Y 2d 337, 345, cert, den. 409 U. S. 1027; United States v. Harris, 403 U. S. 573, 583-584). Consequently, Faulman’s specific reliability in this instance and his asserted personal knowledge of defendant’s arrangements to perform the abortion constituted probable cause to arrest defendant (People v. Hendricks, 25 N Y 2d 129, 134, supra; Spinelli v. United States, 393 U. S. 410, 416, supra).

It is only “ unreasonable ” searches and seizures which are prohibited by the State and Federal Constitutions (N. Y. Const., art. I, § 12; U. S. Const., 4th Amdt.; Elkins v. United States, 364 U. S. 206, 222). Thus far, absent specified categorical exceptions, the Fourth Amendment has been interpreted as requiring searches to be conducted pursuant to a warrant (Coolidge v. New Hampshire, 403 U. S. 443, 455; but see United States v. Edwards, 415 U. S. 800, 802). A warrant, however, is not required even where it is not impractical to secure one, if the search and seizure falls within one or more of the categorical exceptions (Chambers v. Maroney, 399 U. S. 42, 51-52; Cooper v. California, 386 U. S. 58, 62).

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Bluebook (online)
315 N.E.2d 452, 34 N.Y.2d 462, 358 N.Y.S.2d 383, 1974 N.Y. LEXIS 1482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-perel-ny-1974.