Summary
In Reyes, two officers positioned themselves on both sides of the defendant and "approached him with their hands on their holstered guns" while commanding " ‘Hey stop, excuse me’ or ‘Stop, hey, stop, police,’ or words to that effect" after they observed him "clutch" with his hands in his pants pockets and "walk briskly away from a group of men" in a "drug prone area" (id. at 946, 615 N.Y.S.2d 316, 638 N.E.2d 961).
Summary of this case from People v. JohnsonOpinion
Decided June 21, 1994
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Murray Mogel, J.
Frank Loss, New York City, and Philip L. Weinstein for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Tami J. Aisenson of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
In the early afternoon of November 15, 1991, two police officers, Adrian Klapper and Donald McCarthy, were in uniform in a marked police van patrolling the vicinity of 185th Street and Wadsworth Avenue, New York County. They observed defendant clutch inside his black corduroy jacket beneath his armpit, place both hands in his pants pockets and walk briskly away from a group of men standing in the "drugprone" area. The officers followed defendant and, as they approached him with their hands on their holstered guns and positioned themselves on both sides of him, Officer Klapper yelled, "Hey, stop, excuse me" or "Stop, hey, stop, police," or words to that effect. When defendant stopped and turned toward Officer Klapper, a kilogram "brick" of cocaine fell from defendant's armpit onto the ground. The officers arrested defendant and a search of him revealed another kilogram brick of cocaine hidden inside his jacket under his other armpit and $280.
Defendant's motion to suppress was denied following a hearing and, thereafter, he pleaded guilty to criminal possession of a controlled substance in the second degree. The Appellate Division affirmed, with two Justices dissenting, and a Justice of that Court granted leave to appeal.
We agree with the Appellate Division that the police action in this case constituted nothing more than a permissible request for information based on some objective credible reason (see, People v Hollman, 79 N.Y.2d 181, 191; People v De Bour, 40 N.Y.2d 210, 223; see also, People v Bora, 83 N.Y.2d 531). Defendant was observed in a "drug-prone" area walking away from a group of men and clutching the inside of his jacket beneath his armpit as a marked police van approached.
In addition, the Appellate Division's determination that defendant's relinquishment of the first kilogram brick of cocaine was not based upon submission to police authority is a mixed question of law and fact that is supported by the record, and, thus, is not subject to our further review (see, People v Holmes, 81 N.Y.2d 1056, 1058-1059; People v Hollman, 79 N.Y.2d, at 193-194, supra).
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.