People v. Farrell

Asch, J. (dissenting).

On January 30,1981, at about 7:15 p.m., Detective Raymond Melendez, together with Sergeant Joseph Lacy, was driving south on Broadway in an *400unmarked police car. Both officers were in plain clothes. As they approached 72nd Street, Detective Melendez saw two tall males with open coats standing near a Florsheim Shoe Store. It was a cold January evening and as they later testified, long “unbuttoned” coats are an indication of weapons. One, the defendant, was standing just south of the store display window. His body was hidden from the view of the store patrons. He was peeking over his shoulder and looking into the store, not at the window display. The officers inferred from the position of the defendant’s head that his stance was an attempt to avoid being seen by those within. The other man, one Wayne Marshall was standing in the middle of the sidewalk, north of the defendant, looking up and down the block. Defendant and Marshall were the only persons just standing there and looking around.

When the officers made a left turn in their vehicle into Amsterdam Avenue at 72nd Street, they saw a stopped white station wagon, its engine running, with a male in the driver’s seát. The station wagon was parked on the west curb of Amsterdam Avenue between 72nd and 73rd Streets, about 100 feet directly across from the shoe store. The officers watched as the defendant motioned to Marshall. Marshall thereupon moved closer to the curb and continued to reconnoiter the street. The officers observed the defendant a moment later walk up to Marshall and appear to converse with him. The defendant then walked over to the white station wagon, motioned to it and appeared to be speaking to the driver before again returning to his position just south of the shoe store.

Soon after, the defendant, while walking toward the curb in the direction of the two officers, put his thumb inside his waistband and moved his hand from the right to the left side of his waist toward the middle of his belt. It was a tugging movement as though he was adjusting something in his waistband.

The officers were now confronted with what they believed to be, based on their street experience and training, the classic triad of a stick-up team; robber, lookout and driver. As they watched the three men, the officers’ suspicions were heightened by the furtive communications be*401tween the three men. Also, most significantly, when put into context with all the earlier observations, the defendant’s suspicious hand movement to his waist band, led the officers to believe that the defendant was armed.

The officers did not act precipitously on their initial suspicions. They first observed the pair and then the trio. The sequence of acts which they watched, though perhaps innocent if viewed separately, taken together., gave these officers, experienced in street crime, reasonable suspicion to believe not only that a robbery was about to be committed but that the defendant, at least, was armed. They, thus, at this point, had enough suspicion to justify a stop-and-frisk of the three men. (Terry v Ohio, 392 US 1.)

The defendant, after looking north on Broadway in the direction of a recently arrived unmarked police car, suddenly turned and began walking south on Broadway, joined by Marshall. When the defendant reached the station wagon, he got into the front passenger seat. Marshall continued to walk down Broadway and turned right on 72nd Street, after making a motion with his left hand. The station wagon pulled away from the curb and made a right turn on 72nd Street.

The officers, in their vehicle, made two left turns back on Broadway. At that point they saw the unmarked police car parked some 150 to 200 feet north of the shoe store. They pulled up, advised one officer, who was waiting for her partner, that they were following a possible stick-up team and asked for assistance as soon as the policewoman was joined by her partner.

Detective Melendez then followed the white station wagon under surveillance. Sergeant Lacy was on the radio requesting assistance from the other cars, telling them that he and his partner were following an armed stick-up team. At 102nd Street and West End Avenue two unmarked police cars radioed that they were now directly behind the vehicle containing Sergeant Lacy and Detective Melendez. When the station wagon stopped at a red light on 104th Street and West End Avenue, supported now with sufficient backup, Sergeant Lacy ordered the police car directly behind his to drive diagonally in front of the *402station wagon and block its path. This being accomplished, the plain-clothes policemen began to get out of all three cars. At the same time the three suspects stepped out of the doors of their vehicle. Sergeant Lacy saw the handle of a gun protruding over the defendant’s belt buckle. This gun, a .38 caliber Taurus pistol, loaded with five live dum-dum rounds, was seized by the sergeant, who also arrested the defendant.

The police officers testified that the area in question had been subjected to a number of armed robberies; that the time when they made their observations, shortly before closing time for retail establishments, was a favored hour for the perpetration of such robberies; and that the movements of the three observed individuals fitted a familiar choreography for armed robbers.

Although the court below found the police officers’ testimony regarding their observations credible, and that there were sufficient articulable facts to support a reasonable suspicion that criminal activity was afoot, it held that once the suspects left the scene they had renounced any criminal intent regardless of their motive for leaving. Therefore, reasoned the court, whatever reasonable suspicion of potential criminal activity had existed was entirely dissipated and the act of the police in cutting off the station wagon and arresting its occupants was arbitrary and unlawful. This analysis misses the point however. The defendant was not arrested for robbery or attempted robbery. He was arrested for possession of a weapon after he had been lawfully stopped by police officers who had a reasonable suspicion to believe that he was armed and that criminal, activity was afoot.

The trial court’s finding that there was a renunciation of criminal purpose was misdirected. The officers had a reasonable suspicion not only that a robbery was about to be committed but also, as a corollary stemming from the facts, that the defendant was armed. Renunciation cannot be a defense to the crime of possession of a gun. (Cf. People v Vasquez, 85 Misc 2d 851.) Even if there was reason to believe the trio had abandoned any idea of committing a robbery, there was no evidence that the defendant had *403abandoned the gun which the officers’ observation had led them to reasonably suspect he had at the original location.

The United States Supreme Court has determined that an officer’s observations of actions suggesting a possible robbery, without any direct evidence of the actual existence of a gun, made it “reasonable to assume [that the crime] would be likely to involve the use of weapons”. (Terry v Ohio, supra, at p 28.) Here the suspicious gestures made by defendant to his waistband and the long unbuttoned coats worn by the suspects furnished the police with an “a fortiori” predicate justifying a stop-and-frisk.

The critical issue presented was whether the police officers, experienced veterans of the police department’s Street Crime Unit, trained to recognize conduct indicative of criminal activity, reasonably suspected that one or more of the persons in the stopped vehicle had committed, or were committing, a felony or a misdemeanor. (See CPL 140.50, subd 1.) One does not have to be a trained police officer to appreciate that what the policemen described was strongly indicative of criminal behavior and not merely the vagaries of innocent window shoppers. In short, the police reasonably suspected that one or more of the defendants were unlawfully armed and that all three of them had committed the felony of conspiracy in the fourth degree, that is, conspiracy with intent to perform a class B or class C felony.

That a robbery in fact did not occur, although relevant, does not refute the clear implications of that which the. officers had observed, as the hearing court recognized. This is especially so in view of the possibility that the hurried departure of the three individuals may well have been precipitated by the arrival on the block, in the view of one or more of them, of an unmarked police car. Indeed, the highly suspicious character of their departure, with one of their number walking to the corner and turning and signalling to the vehicle to follow and pick him upi, is strongly confirmatory of the validity of the police inferences.

The People concede that the blocking of the station wagon’s progress amounted to a seizure. (People v Cantor, 36 NY2d 106, 111-112.) However, this seizure was “not the *404product of mere whim, caprice or idle curiosity” (People v Ingle, 36 NY2d 413, 420), but rather the product of careful and reasonable police work. It was neither unreasonable nor inappropriate given the circumstances. The approach of Sergeant Lacy with gun drawn was also reasonable and appropriate in this situation. It did not elevate the seizure into an arrest requiring probable cause. (See People v Foster, 83 AD2d 282, 286.) Awaiting the arrival of back-up units, the method of intercepting the station wagon, and approaching with gun drawn, were reasonable safety precautions given the fact that the sergeant was confronting three potentially armed members of a stick-up team.

As he approached, Sergeant Lacy tried to stay out of any potential line of fire. The gun was then seen in plain view, creating probable cause necessary for arrest.

As this court has aptly pointed out: “The police officer is not an actor in a Hollywood scenario, where the quick draw of the gun provides exciting entertainment for the viewers. Rather, the police officer is experiencing the dangers of the real world where the Marquis of Queensberry rules do not apply.” (People v Rivera, 78 AD2d 327, 331.)

We are unable to agree that the police here acted unreasonably. The delay in stopping the vehicle was an exercise of prudent police judgment and in no way inconsistent with the requirements of CPL 140.50. In light of that which they observed and their well-founded interpretation of those events, the experienced officers in question might well have been subject to criticism if they had simply dropped the matter when the vehicle left.

Accordingly, I would reverse the order of the Supreme Court, New York County (Gabel, J.), dated September 18, 1981, which, after hearing, granted defendant’s motion to suppress the silverplated .38 caliber revolver loaded with five live rounds of “dum-dum” type bullets and deny defendant’s motion.

Bloom and Fein, JJ., concur with Milonas, J.; Sandler, J. P. and Asch, J., dissent in an opinion by Asch, J.

Order, Supreme Court, New York County, entered on September 18, 1981, affirmed.