People v. Warren

89 A.D.2d 501, 452 N.Y.S.2d 50, 1982 N.Y. App. Div. LEXIS 17538

Opinions

Judgment, Supreme Court, New York County (Gabel, J.), rendered December 18, 1981, convicting defendant upon his plea of guilty, after denial of his motion to suppress a gun, of the crime of attempted criminal possession of a weapon in the third degree and imposing a conditional discharge upon payment of a fine of $2,500 and an additional $2,500 to be contributed to an organization politically advocating gun control, modified, on the law, to vacate that portion of the sentence directing the $2,500 contribution, and otherwise affirmed.

* At the hearing to suppress a .32 caliber pistol seized from defendant’s car, the People called Detective Waddell, a 17-year police veteran. He testified that, while on a uniform shift on March 17,1981 at about 8:00 p.m., he was parked with his partner in a marked squad car facing south on Second Avenue near 16th Street. He saw a robin’s egg blue car, with New Jersey plates and with only the operator in it, run a red light crossing 14th Street headed south on Second. He observed also that, of the two color combinations in which New Jersey plates are issued, this car had plates with the blue, not the cream, background. The officer testified that, being St. Patrick’s night, traffic was heavy and the blue car was driving at a speed perhaps less than the limit but fast for the traffic conditions. Waddell did not use the.siren or his turret light because he was fearful that they might prompt the quarry to greater speed in the crowded streets. It was 15 blocks before defendant was signaled to the curb. Waddell admitted that he lost sight of the car for a few blocks around Houston Street but contends that he regained sight of the same car — robin’s egg blue, only the operator in it, blue background New Jersey plates — before he stopped it. When the defendant opened the glove compartment to get the requested registration, the police saw the pistol. In denying suppression, the hearing court gave credence to Waddell’s conclusion that the car he stopped was the same car that had run the red light at 14th Street. The court found that the officer had had considerable experience in observing and apprehending traffic offenders. She was impressed by his “careful memory” of colors, robin’s egg blue and the blue rather than cream license plates. She found his testimony “clear and convincing”, and, indeed, the credibility of his factual testimony is not challenged on appeal. Addressing the point on appeal, we find that given Waddell’s credibility, observations and experience, it was reasonable for him to have concluded that the defendant’s car was the one that ran the red light. Suppression was properly denied. We need not document here that gun control is a vehemently debated political issue. It is well known. We find invalid the imposition of a contribution that would advance one side of this controversy. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us” (Board ofEduc. v Barnette, 319 US 624, 642). Since “[a] contribution serves as a general expression of support” (Buckley v Valeo, 424 US 1, 21), a forced contribution is an affiliation by coercion. It is patently unconstitutional. The objections taken by the People — that this was a plea bargain and that defendant failed to preserve his right to appeal by not objecting to the sentence — if otherwise valid, should fall in the face of the serious constitutional issue presented here. Concur — Lupiano, Fein, Lynch and Asch, JJ.

Execution of sentence has been stayed pending this appeal.