People v. Dinkins

Silverman, J. (dissenting).

I would affirm the conviction.

I. SEARCH OF THE AUTOMOBILE

I think the search of the automobile was justified.

In the present case the police received a 911 telephone call describing the car, giving its license number and its location and stating that there was a man with a shotgun in it. The police went there and found the described car in that place and saw the defendant get out of it. Such a call, even though anonymous, at least when corroborated by the accuracy of the descriptive facts (car, license number, location) is a sufficient predicate for police action. (Cf. People v Correa, 47 NY2d 807, revg 56 AD2d 934 on dissenting opn of Hopkins, J.)

In People v Clark (45 NY2d 432, 438-439), the Court of Appeals said with respect to a search of an automobile:

"Upon the facts presented we must determine if the police *398had a reasonable belief that the vehicle was, in some way, associated with the crime and that a search of the vehicle would 'produce the fruits, instrumentalities, contraband or evidence’ of the crime (People v Lewis, 26 NY2d 547, 552) * * *
"One last word on the search of the automobile. We agree with the appellant that whereas warrantless searches of automobiles have been sustained in circumstances that would not justify a similar search of a building (Cady v Dombrowsky, 413 US 433) there is no blanket 'automobile exception’ to the constitutional protections against unlawful searches and seizures (Preston v United States, 376 US 364; People v Spinelli, 35 NY2d 77). On the other hand, to attempt a judicial restraint on the search which was conducted in this case would be to ignore the exigencies of the moment—the danger and difficulty incidental to guarding the vehicle in a desolate parking lot at that hour on New Year’s Eve; the possibility of accomplices gaining access to the car; and, of course, the mobility of the vehicle. To say that the police should be discouraged from conducting this vehicle search would require a perverse application of the exclusionary rule.”

Applying these standards here, there can be no doubt that the police had a reasonable belief that the vehicle was associated with the crime and that a search of the vehicle would produce the contraband. The 911 telephone call said the shotgun was in the car. Again we have here the exigencies of the moment; the difficulty incident to guarding the vehicle in a high crime area; the possibility of accomplices gaining access to the car; and the mobility of the car.

In my view, it is immaterial whether the police looked into the car first or talked to the defendant first. The finding of the shotgun in the car was not the result of any questioning of the defendant. Whatever he said, the police could hardly leave without looking to see whether the gun was in the car.

The issue of the reasonableness of the search was not before the jury. But I note that on summation, the defendant’s attorney said, "the police officers acted as logical police officers would under the circumstances.”

II. THE CROSS-EXAMINATION OF DEFENDANT AND HIS BROTHER ABOUT THE FAILURE TO COMPLAIN

Examination of the record indicates that defendant con*399tended at the trial that he had been attacked with the shotgun by one Kurt, in the course of which Kurt had caused a misfired shell to be ejected from the shotgun and dropped to the ground, and that thus he, defendant, had only temporary possession of the shotgun incident to the lawful purpose of protecting himself, and that defendant had indicated this to the police at the scene. Having thus injected this issue, including the question of what the defendant told the police, defendant is precluded from urging on appeal that the prosecution could not bring out the incompleteness of what defendant told the police.

In Doyle v Ohio (426 US 610, 619-620, n 11), the Supreme Court addressed the precise issue of the impropriety of questioning a defendant about postarrest silence and made this caveat: "It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.” (See, also, People v Savage, 67 AD2d 562.) That is this case.

Thus the course of examination on this issue was as follows:

On cross-examination of the police officer, defendant’s attorney asked the police officer whether at the time of his arrest defendant had asked him to look for a shell. This is the first reference to any statement by defendant. Thereafter defendant’s brother testified and on direct examination told of the incident as he had been told it by defendant. On cross-examination he told of his complaint to the police. Thereafter defendant testified and he too on direct examination told of the incident, told of the ejection of the shell and said that he told the police to look for a shell. In this context, the defendant’s contention that he told the police to look for a shell was. relevant only as an indication that defendant made a statement to the police supporting his contention. (In summation, defendant’s attorney confirmed that this was his strategy. He said: "The defendant must have complained to the police at the time on the scene when he asked them to look for the shell on the ground * * * The shell that popped out of the gun when Kurt tried to shoot my client * * * When the defendant was arrested that’s when he said, please, there is a *400shell on the street, please get that shell. That’s what he must have said.” Similar statements were made about defendant’s brother.) It was then open to the District Attorney on cross-examination to show that even by defendant’s own statement, he had not told the police of the Kurt incident.

This is not a case of a defendant who chooses to exercise his constitutional right to remain silent at the time of arrest or when arrest is imminent. Rather it is a case of a defendant who claims to have made an exculpatory statement at that time and thus the prosecution had the right to explore fully the scope of the claimed exculpatory statement and its failure to give the obvious salient fact now claimed, i.e., that an attempt had been made by a third person on defendant’s life.

No objection was made by defendant to his examination by the District Attorney or the related questions by the court. This failure to object is consistent with the defendant’s trial attorney’s tactics and inconsistent with his appellate counsel’s present contention of the impropriety of the examination. Indeed, one of the important reasons for our exercising cautiously our power to notice claimed errors in the absence of objection at the trial is that such absence of objection is frequently rather strong evidence that what happened at the trial was in line with appellant’s trial strategy, and that the contention on appeal is an afterthought inconsistent with that strategy, a strategy which is then transmuted into a claim of error on appeal.

As to the brother, the propriety of the examination is even clearer. The brother not being a defendant, there is no self incrimination objection to questioning him about his silence and his failure to inform the police. The objection now appears to be that that questioning implies a duty to inform the police, and that there is some absolute prohibition against such questioning. But we need not find a duty to inform the police to justify this cross-examination. It is enough if it would have been normal and natural for the witness to have informed the police if the event had transpired as he said, so that failure to inform the police would properly bear on the probability of his testimony. Here we have a man who is told that an attempt had just been made to kill his brother with a shotgun. The police arrive; and it would obviously have been the normal thing to do to tell them that somebody had just tried to kill his brother. Hence, cross-examination as to whether he did tell the police this fact was proper. He may *401have given a satisfactory explanation of his conduct, as indeed I think he did if his testimony is believed. But that does not make the cross-examination improper.

Fein and Lane, JJ., concur in part and dissent in part in an opinion by Fein, J.; Birns, J. P., and Silverman, J., dissent in an opinion by Silverman, J.

Judgment, Supreme Court, New York County, rendered on July 27, 1977, reversed, on the law, and the case remanded for a new trial.