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Supreme Court, Queens County

A Queens Criminal Lawyer said that, consolidated appeals (1), by the defendants from two judgments (one as to each of them) of the Supreme Court, Queens County, both rendered June 19, 1984, convicting Day of murder in the second degree, and convicting defendant of manslaughter in the first degree and robbery in the first degree, upon their pleas of guilty, and imposing sentences, and (2) by the defendant from two judgments of the same court, both also rendered June 19, 1984, convicting him of criminal possession of a weapon in the third degree, and criminal possession of stolen property in the first degree under, upon his pleas of guilty, and imposing sentences. The appeals bring up for review the denial, in part, after a hearing, of those branches of the defendants’ omnibus motions which were to suppress statements made by them to law enforcement officials and identification testimony.

A Queens Gun Crime Lawyer said that, shortly after midnight on November 3, 1983, the defendants with a third companion, were driving through Jamaica Estates in Queens when they observed two students from Saint John’s University, the victims walking from their parked automobile to their apartment building. While one of the defendants relieved the victim of her valuables at gun point, another pursued the fleeing of the victim stabbing her in the heart when she struggled. Money and jewelry were taken from the women, and the jewelry was pawned on the following day at a shop on Rockaway Boulevard in Queens.

A Queens Felony Lawyer said that, on his appeal, the defendant asserts that his statements to the police, as well as the identification testimony of the complainant should be suppressed because the police knew or should have known that he was represented by counsel in pending criminal proceedings. He also argues that his plea allocutions were insufficient, that his guilty pleas were not knowingly and intelligently made, that he did not receive the effective assistance of counsel, and that his sentences were excessive. His contentions are without merit.

The Detective of the Detective Bureau of the Queens Task Force obtained a copy of the defendant’s arrest record and most recent arrest report at about noon on November 13, 1983. The detective testified that he had examined those records only for the names of possible “associates” of the defendant, and, in any event, the records contained no information regarding the disposition of any prior charges against the defendant, or whether those cases were open or closed. At approximately 4:00 P.M., as the Detective was going off duty, he left those records along with other material for the Detective on a desk at the 107th Precinct. The Detective did not indicate that he had spoken to the other Detective concerning those records nor did he ever personally bring them to his attention. Therefore, there is no evidence in the record that the Detective had actual knowledge of the defendant’s pending cases, or that he knew that the material obtained by the Detective existed.

A said that, the Detective came on duty at 4:00 P.M. on November 13, 1983. Queens Gun Crime Lawyer Shortly after he arrived, he set out with other officers to tour the defendant’s neighborhood, and kept watch while several plainclothes detectives entered his home. At between 10:30 and 11:00 P.M. on November 13, 1983, the defendant, accompanied by his mother and his stepfather, voluntarily appeared at the 107th Precinct. At approximately 11:55 P.M., the Detective read defendant his Miranda rights, and he made an inculpatory statement.

The issue in this case is whether defendants’ motion to suppress the evidence against them should be granted.

Thereafter, the defendant received the sentences that he bargained for and that his counsel requested be imposed. The sentences were not excessive. On his appeal, the defendant contends that all of his statements should be suppressed either because he was arrested on the street without probable cause, or else because when he was arrested the police knew or should have known of criminal proceedings pending against him and that he was represented by counsel in those proceedings. The defendant also submits that he was improperly deprived of exculpatory material to which he was so that the pretrial hearings were unfair. Those contentions are also without merit.

It is apparent from the record that the defendant was not under arrest when he was first stopped on the street, or later at the precinct when he was cooperating with the officers’ investigation. The authority to stop persons on public streets is derived from CPL 140.50 and the common-law right to inquire. Under CPL 140.50(1) and (3), a police officer may stop a person in a public place if he has a reasonable suspicion that the individual is committing, has committed, or is about to commit a crime. In addition, the police may stop a person pursuant to the common-law right to inquire if there exists “a founded suspicion that criminal activity is present”. In the instant case, two detectives in a radio car had received a communication describing defendant, who had just been seen with two companions, as the individual who had sold the homicide victim’s jewelry to a local shop some nine days before. The officers therefore had reasonable suspicion that he had committed a crime, and were justified in temporarily detaining him and his companions to the extent necessary to obtain explanatory information regarding their knowledge as to where and how the jewelry had been acquired. He agreed to accompany the police to the precinct to discuss the matter. From the record, it is apparent that he was neither handcuffed nor otherwise coerced to go.

The courts of this State have “rejected as standards for determining when a defacto arrest has taken place the wholly subjective belief of the officer, as well as that of the citizen”. The courts have looked instead to “what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position”. Among the factors taken into account when determining whether an individual has been in police custody are the amount of time spent with the police, whether he was physically restrained or his freedom was significantly restricted in any way, the degree of cooperation he exhibited, the atmosphere in which he was questioned, and whether the questioning was investigatory or accusatory in nature.

At the precinct, the defendant was not physically restrained, spent time with his girlfriend, and was subjected to investigative rather than accusatory questioning. He had indicated his willingness to cooperate, since he had not done “anything wrong”. Half an hour after his arrival, he made his first incriminating statement. It is apparent that a reasonable man, innocent of any crime, would not have perceived himself to be in custody at the time when he made his initial admissions. Further, since he was not yet in custody when he made those admissions, there was no violation of his right to counsel.

In any event, there would be no reason to impute to the authorities knowledge that there were criminal proceedings pending against the defendant and that he was represented by counsel in those proceedings, since the police were unaware of his actual surname until their questioning of him began. By pleading guilty, the defendant waived his contention that the prosecution failed to timely turn over certain Brady material to him. While not every claim is forfeited by a guilty plea, the plea does signal an agreement not to litigate the factual elements of the crime charged. In the instant case, the items not produced by the prosecution–an incomplete composite sketch found unsatisfactory by the complainant, voluminous photographic displays in which none of the defendants was recognized by either of the witnesses, and documentation concerning an investigation of other suspects who had been cleared by the police–go to the issue of factual guilt, which, while appropriate for litigation at a trial, are waived by a plea of guilty. There was no Bail Reduction.

We have examined the defendants’ remaining contentions, including the contentions raised in the defendant’s supplemental pro se brief, and find them to be without merit.

Accordingly, the court held that the judgments are affirmed.

If you are facing gun crime charges, seek the assistance of a Queens Gun Crime Attorney and Queens Criminal Attorney at Stephen Bilkis and Associates.

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