Opinion
June 13, 1967
Order, entered December 13, 1965, granting defendant's motion to suppress, affirmed on the law and on the facts. The conclusions reached by the court below are entirely consistent with the evidence. The court made it plain that it did not believe the store owner, Brigandi, and his clerk, Meyerson. Aside from the defendant and his companion, Brigandi and Meyerson were the only ones called as witnesses to testify as to what actually occurred when the uniformed police officers entered the store. Their testimony, in addition to references to other matters, was to the effect that the two coins were on the show-case, open to view, having been produced by the defendant. As against this, defendant and his companion both testified that uniformed police came into the store, ordered them to place their hands against the wall and emptied their pockets and wallets and, in this manner, obtained possession of the two coins, and restrained them until detectives came in. It is important to note that no one in the store could identify these coins as part of those stolen from Merkin. All the persons heretofore mentioned remained in the store until detectives arrived and they, too, could not identify the coins as part of the property stolen from Merkin. The detectives did testify that, when they entered, the two coins were on the show-case. This is not denied by the defendant and his companion because it was their claim that these were taken out of the pockets of the defendant earlier when the uniformed police searched them. The detectives instructed the police to keep defendant and his companion in the store. They then left with the two coins and went to a midtown hotel where they showed the two coins to Merkin who was alleged to have identified them as his. The defendant and his companion were thereafter handcuffed together and brought to the station house. In the police car, on the way to the station house, defendant asked to call his lawyer and this was repeated a number of times thereafter. Defendant's companion was released in the station house, but the defendant was retained in custody and subjected to questioning. The basic issue in this case before the court below was, what did happen in the store when the uniformed police entered? Certainly, if the court believed the defendant and his companion that they were immediately placed against the wall and searched by the uniformed police officers, there was no justification for the search and seizure and the motion to suppress was properly granted. Even if we adopt the version of Brigandi and his clerk, which was not believed by the court, that the two coins were produced voluntarily by the defendant and they were in open view on the show-case, that did not constitute probable cause for the arrest because no one present could identify the two coins as stolen property. The claim of the People is that the arrest was made on the theory of recent possession by the defendant of the fruits of a crime. Without discussing the other elements which would be necessary, it must be kept in mind that the alleged theft took place over a month before the day of the arrest. This is hardly recent possession. The statement in the dissenting opinion that Brigandi recognized the coins as being on the list of stolen coins is not borne out by the evidence, because the record is clear that no written list of the stolen coins was prepared, nor circulated. If they were recognized by Brigandi, then why did they all wait for detectives who took the coins and brought them to Merkin for identification? When the hearing before the court below was completed there were simple questions of fact for the court's determination. In commenting on the credibility of Brigandi and Meyerson the court said: "They didn't impress me very favorably * * * They did not impress me very favorably. They hemmed and hawed and changed their answers. * * * I have examined the credibility of the witnesses very carefully." In view of the attitude of the court below, was it not very strange, to say the least, that none of the uniformed police officers who first entered the store and whose actions were very much under scrutiny, was called to testify as to what they did do when they entered the premises? Their names, shield numbers and assignments were known to the People. The dissenting opinion explains the failure of the People to call these uniformed policemen as an unusually weak presentation by the People. The court below, however, evidently considered such failure as militating most strongly against the People's version. The law is well established that a search, not authorized by consent or a search warrant, is deemed proper only if conducted incidental to a lawful arrest; and for an arrest to be lawful the arresting officer must have probable cause for believing that a crime has been committed and that the person arrested is the person responsible. ( People v. Loria, 10 N.Y.2d 368; People v. Malinsky, 15 N.Y.2d 86.) The record discloses that the court below was most painstaking and thorough in its evaluation of the situation before it, in the light of the applicable law, and was completely justified in the conclusion it reached. Its determination should not be disturbed.
On this motion to suppress several questions were raised but the only one requiring consideration involved the initial search and seizure. The question here is entirely factual, and while the deference due to the trial court's superior advantage in having heard the witnesses is recognized, the result, in my opinion, so contradicts all reasonable probability that I am forced to disagree. On January 4, 1965, a dealer in rare coins named Merkin reported the theft of about 1,000 coins. A description of the stolen coins was circulated to dealers. On February 5, 1965, a dealer named Brigandi received a telephone call from a man offering to sell two of these coins. Brigandi recognized them as being on the list of stolen coins, made an appointment for that afternoon and alerted the police. The appointment was not kept. The following day, a Saturday, the defendant and another man appeared at Brigandi's store. Brigandi's assistant, Meyerson, waited on them. Defendant inquired about purchasing a set of Vatican coins. In the course of the conversation, according to Meyerson, defendant produced the two coins previously mentioned and offered them for sale. Meyerson excused himself and notified Brigandi. Brigandi called the police and then went into the salesroom, where he saw the coins. While they were discussing them, two uniformed officers arrived. Shortly thereafter, detectives appeared. One of them took the two coins to Merkin, who identified them. The detective returned to Brigandi's. The defendant was arrested and searched, the search revealing some other coins later identified by Merkin as his. It is not disputed that, if the facts were as above stated, the search was in all respects proper. The defendant's version, which has been accepted, is that he visited Brigandi's store to purchase a set of Vatican coins. While so engaged, and without there having been any mention of the Merkin coins, the uniformed officers arrived suddenly and searched him. When the detectives arrived, two of the coins, the result of the search, were handed over to the detectives, resulting in their identification by Merkin. If this were merely a choice of which version should be accepted, the trial court's accrediting the defendant's would be unexceptionable. It was further buttressed by an unusually weak presentation by the People. The uniformed officers were not called to testify. But defendant's version of the facts is fantastic. According to him, neither Brigandi nor his salesman Meyerson had any reason to suspect that defendant had the Merkin coins on his person. There was nothing to associate defendant with the telephone call of the previous day. As far as anyone concerned knew — Brigandi, Meyerson or the police — defendant was merely a customer interested in making a purchase. Unless one is prepared to believe that for no reason Brigandi was prepared to antagonize a prospective buyer by accusing him without a trace of justification of being in some way implicated in a theft, Brigandi's conduct is totally unexplainable. It just defies the processes of reasoning to believe that what defendant says took place is a truthful narration of the incident. In the face of that, the fact that the proof offered by the People was not as complete as it might have been is not significant. All of this is not to say that defendant is guilty of the crime for which he was arrested, or of any crime. A showing to that effect is not required on a motion to suppress. The proof was adequate to compel denial of the motion.