Summary
confining suspect in a holding cell for one hour at the police precinct turned a stop into an arrest
Summary of this case from Lora v. City of N.Y.Opinion
June 1, 1995
Appeal from the Supreme Court, New York County (Dorothy Cropper, J.).
New York City detectives were justified in taking defendant to the precinct to investigate whether a possible "con" was being committed against an elderly woman since they reasonably suspected that defendant was committing a crime ( see, People v De Bour, 40 N.Y.2d 210, 223). However, the police turned a proper investigative detention into a full-blown arrest by placing defendant in a hold cell for approximately one hour before formally arresting her for the crime charged ( cf., People v Hicks, 68 N.Y.2d 234, 241-242). Nevertheless, since the detective learned solely from the victim that defendant devised a "con" scheme, the officers had independent probable cause to arrest defendant, and although the original arrest was improper, the search of defendant's bag was allowable based upon an independent source ( see, People v. Arnau, 58 N.Y.2d 27, 32-33, cert denied 468 U.S. 1217).
Last, defendant's claim that the prosecutor violated her Fifth Amendment right to remain silent by attributing communicative value to her act of smiling is unpreserved for appellate review, and in any event the error was harmless beyond a reasonable doubt ( People v. Basora, 75 N.Y.2d 992).
Concur — Murphy, P.J., Rubin, Kupferman, Asch and Nardelli, JJ.