# Petition — New York v. Howard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0558%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1023 ## Text & (0) om 5 4 8 Pe Supreme Court, U.S. No. abandonment. 65 A.D.2d 714 (1st Dept. 1978). If the Court of Appeals’ ruling on this issue is permitted to stand, therefore, it will be infinitely more difficult for the police to respond intelligently to the common, everyday types of on-the-street situations this case represents. The ruling in this case will make it difficult, if not impossible, to establish that property tossed away by defendants seek- ing to avoid apprehension has been abandoned and is, there- fore, seizable by the police. Moreover, the dissenting opinion in the Court of Ap- peals noted, ‘‘this is not the typical case where the theory of abandonment is utilized to explain the dissipation of taint flowing from illegal police activity. Instead, the record reveals that this is a case where defendant attempted to divest himself of the drugs and gun so that no incrimi- nating evidence could be discovered by the police who were rightfully in pursuit.’’ 50 N.Y.2d at 595. Thus, significant questions are presented by the ma- jority opinion’s ruling on the abandonment issue as well as on the question of the legality of the police pursuit. If the four-judge, majority opinion is allowed to stand, the Federal Constitution will now preclude police officers in 13 New York (and perhaps other jurisdictions which will fol- low this decision) from pursuing suspects who flee from inquiry, which is unquestionably legitimate and reasonable. Of the twelve New York appellate judges who have re- viewed these issues, eight decided them in favor of the People. The four-judge, majority opinion of the New York Court of Appeals will, of course, stand nevertheless, unless this Court agrees to review the significant constitutional questions presented by this novel and ill-advised decision. Conclusion For these reasons, a writ of certiorari should issue to review the judgment and opinion of the New York Court of Appeals. Respectfully submitted, Mario Merona District Attorney Bronx County Counsel for Petitioner 215 East 161 Street Bronx, New York 10451 (212) 590-2060 Avan D. Marrus Assistant District Attorney Of Counsel September 1980 = a he. Appendices APPENDIX A Judgment and Opinion of New York Court of Appeals la STATE OF NEW YORK—COURT OF APPEALS 1 No. 362 —SSEE Tue Propie, &c., Respondent, vs. Arcuiz W. Howarp, Appellant. (362) Henry Winestine & William E. Hellerstein, N.Y. Legal Aid, for appellant. Mario Merola, DA, Bronx County (Cary W. Sucoff & Timothy J. McGinn of counsel) for respondent. Meyer, J. An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or 2a search the individual or his possessions, even though he ran away. Nor when the individual, cornered by his pur- suers in the basement of a building and while looking for a way out of the basement, drops or throws a package he was carrying into a pile of junk, has he been shown to have intentionally abandoned the package so as to make ° war- rantless search and seizure permissible. The order of the Appellate Division should, therefore, be reversed, the motion to suppress should be granted and the indictment should be dismissed. Indicted for criminal possession of a controlled sub- stance in the first degree and criminal possession of a weapon in the third degree, defendant Howard moved to suppress the gun and drugs which formed the basis for the indictment. They had been taken from him by Officers Charles Hanley and Cornelius Brosnan, who on the day of the seizure were on anti-crime patrol in the Bronx in plainclothes and in an unmarked automobile. At about 1 p.m., in broad daylight, on University Avenue in the vicinity of Father Zeiser Place (an area which had a high incidence of burglaries), the officers observed Howard cross- ing University Avenue diagonally in a southeasterly direc- tion. Their curiosity was aroused by the fact that defend- ant was carrying what appeared to be a woman’s vanity case. As they passed defendant, both officers saw him look over his shoulder in their direction, in a manner described by Officer Hanley as ‘‘furtive’’. Defendant looked in the direction of the car two or three more times until he reached the center of University Avenue. Then as Hanley pulled the car to the right side of the street, defendant reversed direction, walked to the west side of the street and proceeded south on the sidewalk, 3a The police car made a U-turn and once again the officers saw defendant look in their direction. As the car neared him, defendant’s pace quickened. As the car came parallel with defendant, Officer Brosnan displayed his police shield and said ‘‘Police Officer. I would like to speak to you.”’ Though looking directly at the officers, defendant ignored them and continued walking south. The police followed and at the next opening between parked cars, Brosnan re- peated the same words, and began to get out of the car. Defendant, without saying anything, started to run, hold- ing the vanity case to his chest like a football would be held. The officers pursued and were joined in the chase by Victor Dragaj, a college freshman. Defendant pro- ceeded over an iron fence, through an alleyway and into the basement of a building, at which point, pursued by Dragaj, defendant threw the vanity case into a pile of junk in the corner and sought but was unable to escape through a door which was locked, or a small window on the far side of the room. Dragaj restrained defendant and was joined by Officer Brosnan, who asked defendant why he had tried to get away. About 25 seconds later they were joined by Officer Hanley, who identified himself as a policeman and asked about the vanity case or box. Dragaj pointed to it and Hanley retrieved it from the rubbish pile, which was beyond defendant’s reach, and immediately opened it, revealing a .38 caliber revolver and heroin in glassine envelopes. Hanley then placed defendant under formal arrest. Criminal Term granted defendant’s motion to suppress, concluding that defendant’s flight could not escalate sus- picion to anything more, that even if defendant’s flight made a stop and frisk permissible the officers went beyond 4a the allowable scope of Section 140.50 of the Criminal Pro- cedure Law since defendant was no threat to the officers’ safety and the vanity case was outside the grabbable area, and that there had been no abandonment. The Appellate Division reversed on both grounds, ‘‘on the law and the facts’’ (65 AD2d 714). Since reversal was not on the law alone defendant’s application for permission to appeal was dismissed (46 NY2d 1080). Howard then pleaded guilty to criminal possession of a controlled substance and appealed as permitted by subdivision (2) of Section 710.70 of the Criminal Procedure Law. The Appellate Division having affirmed without opinion (72 AD2d 503), leave to appeal was granted by a judge of this court (48 NY2d 801). Defendant argues that there was no justification for police action of any kind; that in any event he had a consti- tutional right to refuse to answer a police inquiry; that his exercise of that right by walking and then running away did not justify detention of him or seizure of the vanity case; and that as a matter of law there was no abandonment. While we hold that there was a sufficient basis to permit inquiry, we agree that defendant had the right not to answer, that his running did not, absent any indication that any crime had been or was about to be com- mitted, permit detention; that there was no probable cause for defendant’s arrest; and that the vanity case had not been abandoned. As we have recently had reason to reiterate in People v Belton (50 NY2d —— [decided June 5, 1980]), ‘‘[t]he privacy interest of our citizens is far too cherished a right to be entrusted to the discretion of the officer in the field.’’ That privacy interest is protected by the mardate of the Fourth Amendment to the United States Constitution and 5a Section 12 of Article I of our state Constitution both of which, in identical language, state: ‘‘The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.’’ It is protected as well by Section 140.50 of the Criminal Procedure Law, which outlines when a police offi- cer may stop and search persons in a public place,’ and by decisional law expounding the common law and inter- preting the constitutional and statutory safeguards. The principles that have evolved seek to balance soci- ety’s interest in the detection and prevention of crime and in the protection of the lives and safety of law enforcement officers with the interest of individuals in living their lives free from governmental interference. Therefore, whether there has been an unreasonable breach of legitimate expec- tations of privacy involves consideration of (1) the nature and scope or severity of the interference with individual 1. Subdivisions 1 and 3 of CPL §140.50 read, in pertinent part: “1, ... [A] police officer may stop a person in a public place . . . when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor . . . and may demand of him his name, address and an explanation of his conduct. i ae “3. When upon stopping a person under circumstances prescribed in [subdivision] one .. . a police officer .. . reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall return it, if lawfully possessed, or arrest such person.” 6a liberty, (2) the public interest serYed, and (3) the objective facts upon which the enforcement officer relied, in light of his knowledge and experience (Kee United States v Men- denhall, US ——, USLW 4975, 4580 [Powell, J., con- curring]; see also Brown v Texds, 443 US 47, 50-51; Duna- way v New York, 442 US 200, 211-214; Delaware v Prouse, 440 US 648, 654-655; Terry v Ohio, 392 US 1, 20-22; which it is argued affect the classifications we enunciated in Peo- ple v De Bour, 40 NY2d 210). We have no difficulty in concluding that the officers’ re- quest for information from defendant was justified under those criteria. In an area beset by a high burglary rate defendant was seen carrying a woman’s vanity case by the officers, one of whom testified that it was not uncommon for a burglar to carry away loot in his victim’s luggage. Considering those facts together with defendant’s numerous glances at the officers’ car, his change of direction and his quickened pace, we conclude that, though the carrying by a man of a woman’s purse does not constitute probable cause (People v Davis, 36 NY2d 280, cert den 423 US 876) and though defendant could, the car being unmarked and the officers in plainclothes, have acted evasively out of fear for his own safety, the circumstances constituted a sufficient basis* for the inquiry made, which of itself constituted no more than a minor inconvenience to defendant (David v Mississippi, 394 US 721, 727, n 6, and cases cited infra, pp 7 and 8; see 3 La Fave, Search & Seizure, par 9.2). 2. While Officer Brosnan conceded that he was “curious as to what was in the bag,” his inquiry cannot be said to have resulted from “mere whim, caprice or idle curiosity” (Peoplev De Bour, 40 NY2d at p 217, supra) in light of the other circumstances, nor is there any indication that it was “undertaken with the intent to harass” (id). 7a, There was, therefore, basis for questioning defendant, but there was nothing that made permissible any greater level of intrusion. The officers had no information that a crime had occurred or was about to take place, had not seen defendant do anything criminal, and were confronted only by facts susceptible of innocent interpretation (State v Saia, 302 So2d 869 [La], cert den 420 US 869). Presence in an area of ‘‘frequent burglaries’’ was an insufficient basis (People v Schanbarger, 24 NY2d 288, 291); in this day of unisex haireuts and clothing, the carrying of a woman’s vanity case was at best equivocal (People v Davis, 36 NY2d 280, cert den 423 US 876; ef. People v Larkin, 21 AD2d 902, supra); and defendant’s ‘‘furtive’’ move- ments (repeated glances, change of direction, quickened pace) were, the car being unmarked and the officers not in uniform as already noted, at best ambiguous (cf. People v Batista, 68 AD2d 515, 517; People v Towers, 49 AD2d 839; see .\nnotation: Search & Seizure: Furtive Movement or Gesture as Justifying Police Search, 45 ALR3d 581, 600 ff). The circumstances justified the inquiry made and would have justified the officers in keeping defendant under observation (People v Sobotker, 48 NY 559, 564) but were not a predicate for anything more (cf. Dunaway v New York, 442 US 200, 211-214; Sibron v New York, 392 US 40, 64). But while the police had the right to make the inquiry, defendant had a constitutional right not to respond. This is so both because the Fifth Amendment to the United States Constitution and its state counterpart (New York Const, Art 1, Sec 6) permitted him to remain silent and because the Fourth Amendment and its Article 1, Section 12 state counterpart protect him from detention amounting 8a to seizure unless there is probable cause. As Mr. Justice Brandeis put it long age in Olmstead v United States (277 US 438, 478), defendant had ‘‘the right to be let alone.’’ There are surprisingly few cases explicitly so hold- ing, probably because few individuals feel they can walk away or refuse to answer (see Illinois Migrant Council v Pilliod, 398 F Supp 882, 899, affd 540 F2d 1062, on reh 548 F2d 715; A.L.I. Model Code of Pre-Arraignment Procedure [1975], p 257). No New York appellate opinion has dealt with the subject other than as it is touched upon inferen- tially in general discussion of the right to remain silent (e.g., People v Conyers, 49 NY2d 174), but it has been passed upon at Criminal Term and in out-of-state cases and legal commentaries. Thus, People v Burns (91 Mise 2d 1080, 1086 [Goldfluss, J.]) held that ‘‘What sets this Nation apart from others is that its system of criminal prosecution is accusatorial, not inquisitorial. A citizen may, if he so chooses, exercise the right to demand that the police secure evidence of his guilt from other sources than from out of his own mouth,’’ and in People v De Fillippo (80 Mich App. 197, 202, reversed on other grounds sub nom De Fil- lippo v Michigan, 443 US 31) the Michigan Court of Appeals held that ‘‘While police may under certain circumstances intrude upon a person’s privacy by stopping him and asking questions (Z'erry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 [1968]), there can be no requirement that the person answer.’’ In support of that holding the Michi- gan court cited the reference in Davis v Mississippi (394 US 721, 727, fn 6) to ‘‘the settled principle that while the police have the right to request citizens to answer volun- tarily questions concerning unsolved crimes they have no right to compel them to answer.’’ Supporting authority 9a is to be found in cases defining ‘‘seizure’’ by whether the individual interrogated had lost his ‘‘equal right to ignore his interrogator and walk away’’ (Terry v Ohio, 392 US 1, 33 [Harlan, J., concurring], see also 392 US at p 16 [ma- jority opinion], 392 US at p 34 [White, J., concurring] ; accord: United States v Mendenhall, US —, 48 USLW 4575, 4578 [Stewart, J. in an opinion in which Rehnquist, J. joined and with which Burger, C.J., Powell and Blackmun, JJ. did ‘‘not necessarily disagree’’]). Other cases and authorities conceptually in accord with our hold- ing are Umted States v Price (599 F2d 494) ; United States v Wylie (569 F2d 62, cer den 435 US 944) ; Commonwealth v Ellis (223 Pa Super 1969); State v Tsukiyama (56 Haw 8); State v Evans (16 Ore App 189); People v Ortiz (18 Ill App 3d 431); Amsterdam, Federal Constitutional Re- strictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like (3 Crim Law Bull 205, 228). Nor can the failure to stop or cooperate by identifying oneself or answering questions be the predicate for an arrest absent other circumstances constituting probable cause (People v Samuels, 50 NY2d —— [decided herewith] ; People v Berck, 32 NY2d 567, 574, cert den 414 US 1093; Brown v Texas, 443 US 47; A.L.I. Model Code of Pre- Arraignment Procedure [1975], p 300; but see 1 La Fave, Search & Seizure 673-675, §3.6[f]). This is because the failure to answer ‘‘cannot constitute a criminal act’’ (Peo- ple v Schanbarger, 24 NY2d 288, 292). That does not mean that the police in furtherance of their duties may not continue observation provided that they do so unobtrusively and do not limit defendant’s freedom of movement by so doing. Defendant’s flight, had 10a there also been indicia of eviminal activity, would have been an important factor in determining probable cause (Sibron v New York, 392 US 40, 66, 67; People v Kreichman, 37 NY2d 693, 699; People v Dread, 49 AD2d 401, affd 41 NY2d 871; People v Schneider, 58 AD2d 817, 818), but where, as here, there is nothing to establish that a crime has been or is being committed, flight, like refusal to answer, is an insufficient basis for seizure or for the limited detention that is involved in pursuit (Brown v Texas, 443 US 47, 50; Sibron v New York, supra; Wong Sun v United States, 371 US 471; People v Kreichman, 37 NY2d at p 699, supra; State v Finklea, 313 So2d 224 [La]; 1 La Fave, Search & Seizure 669, §3.6[e]; A.L.I. Model Code, supra 298 [‘‘The factors of flight and concealment are also attenuated to the point where they will not alone justify an arrest in cases where there is little or no probability that a crime has been committed’’]). The circumstances existing at the moment defendant Howard was seized by Officer Brosnan did not constitute probable cause for arrest. The opening of the vanity case cannot be justified as incident to a lawful arrest, nor since it was as the Trial Judge found outside the grabbable area can it be justified under subdivision 3 of Section 140.50 of the Criminal Procedure Law. The contents of the vanity case must, therefore, be suppressed unless defendant abandoned it. Property which has in fact been abandoned is outside the protection of the constitutional provisions (People v Pittman, 14 NY2d 885; People v Lopez, 22 AD2d 813; People v Prisco, 61 Mise2d 730). We do not find it neces- sary to consider whether the facts of this case bring it within the concept of police action short of illegal seizure but sufficiently coercive to nullify an abandonment for lla Fourth Amendment purposes (see 1 La Fave, Search & Seizure 372-374, §2.6[b]; ef. Commonwealth v Barnett, 484 Pa 211), for we agree with the hearing judge that intent to abandon cannot be found on the facts of this case. Whether there was an abandonment is partly a matter of property law but essentially a question of constitutional law. There is a presumption aganist the waiver of con- stitutional rights. It is the People’s burden to overcome that presumption by evidence of ‘‘an intentional relinquish- ment or abandonment of a known right or privilege’’ (Brookhart v Janis, 384 US 1, 4; Johnson v Zerbst, 304 US 458, 464; People v Whitehurst, 25 NY2d 389, 391). The proof supporting abandonment should ‘‘reasonably beget the exclusive inference of the throwing away’”’ (Foulke v New York Consolid. R.R., 228 NY 269, 273, quoted with approval in United States v Cowan, 396 F2d 83, 87). So concealment in a trash can does not constitute an abandon- ment (Work v United States, 243 F2d 660, 662; State v Chapman, 250 AD2d 203, 212 [Maine]). As the hearing judge noted, the act of defendant in hold- ing on to the case during the entire chase belies intention to abandon. Since Dragaj and the police were in hot pur- suit, it cannot be found that defendant’s act in dropping or throwing the case in the corner while seeking to open or break down the door and window in the basement was an act ‘‘involving a calculated risk’’ rather than a spon- taneous reaction to the necessity of evading his pursuers (see People v Boodle, 47 NY2d 398, 404, cert den US ——) or that he purposefully divested himself of possession of the vanity case.* Under those circumstances he cannot 3. Cf. Walter v United States (—— US ——, n 11, 48 USLW 4807, 4810, n 11). 12a be said to have knowingly waived his constitutional protec- tion against warrantless search of the case. For the foregoing reasons, the order of the Appellate Division should be reversed, the motion tu suppress should be dismissed (see Matter of Forte v Supreme Court of the State of New York, 48 NY2d 179). JAsEN, J. (dissenting) : Certannly, I have no quarrel with two of the conclusions reached by the majority, to wit: that there existed a suffi- cient basis for the police officers to approach defendant in order to ask questions (see People v DeBour, 40 NY2d 210) ; and that an individual has the absolute right to refuse to answer inquiries posed to him by law enforcement. officers (see People v Rogers, 48 NY2d 167, 176 [dissenting op]). However, I simply cannot agree with the majority’s holding that the police officers could not pursue defendant. Given the particular facts of this case, the officers were completely justified in both chasing and seizing defendant, and search- ing the vanity case. A contrary conclusion serves merely to deal another serious and unjustifiable blow to effective law enforcement. This is another in a vast line of cases where the defend- ant asserts as his sole ground for reversal that the actions of the police officers violated his constitutionally guaranteed right to be free from unreasonable searches and seizures. (U S Const, 4th Amdt; N Y Const, art I, § 12.) While this observation surely does not relieve the courts of their re- sponsibility of overturning a criminal conviction when a valid constitutional claim is asserted no matter how un- pleasant the thought that a criminal will ‘‘go free because the constable has blundered’’ (People v DeFore, 242 NY 13, _ ~ \ \ 13a 21 [Cardozo Ch. J. ]), courts should not blindly reach out and find merit in a constitutional claim where none exists. It seems odd that an admittedly guilty person should be set free, especially where, as here, the police officers acted in a most reasonable manner. _ As the majority candidly concedes, the police officers were justified in approaching defendant to request informa- tion. Defendant was observed in a high-crime area carry- ing 2 woman’s vanity case, an item of luggage often times used by a burglar when absconding with his bounty. Fur- ther, defendant cast numerous glances at the police officers \ when they passed him on University Avenue. As Officer ) Hanley pulled the car to the side of the road, defendant then changed direction to return to the far side of the street. Once the officers made a U-turn to approach defendant, his pace quickened in an obvious attempt to avoid confronta- tion. Seeing these highly suspicious acts, the officers were absolutely justified in pulling their car alongside defendant and, after displaying a shield, requesting defendant to speak to them. In addition, the officers acted reasonably in following defendant a short distance to repeat their request. Certainly, the officers could have believed that defendant merely could not hear them when they first approached, due to traffic noise or the like. Then, as Officer Brosnan began to get out of the car, defendant ran away, clutching the vanity case to his breast. The officers had yet to ask defendant a single question as to his activities, and certainly did not physically intimidate defendant. No guns were drawn no coercive language was employed, and no binding orders were transmitted. l4a Yet, faced with these facts of an incriminating nature, the majority today holds that the officers could do no more than follow defendant to observe him from a distance. Such a conclusion borders on the absurd. The officers had every right, if not the obligation, to pursue defendant in order to investigate this highly suspicious conduct. In my opinion, once defendant ran away, the officers’ level of suspicion was elevated to one of probable cause, remembering that ‘*{p]robable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that [an] offense has been committed’’ by the person to be arrested. (People v Oden, 36 NY2d 382, 384; Brinegar v United States, 338 US 160, 175-176.) It is true that flight from police, in and of itself, would not constitute a sufficient basis for arrest. However, it is equally as true that defendant’s flight is an important factor to be considered when determining whether probable cause existed. (See, eg., Sibron v New York, 392 US 40, 66-67; People v Kreichman, 37 NY2d 6938, 699; People v Schneider, 58 AD2d 817, 818; People v Dread, 49 AD2d 401, 405; People v Archiopoli, 39 AD2d 748). Here, de- fendant’s flight certainly bolstered and confirmed the offi- cers’ suspicion—based upon their prior observations—that defendant was engaging in criminal activity. Thus, the officers had probable cause to arrest defendant, and the arrest was entirely proper. Nor can I accept the majority’s holding that defendant did not evince an intent to abandon the vanity case. I would agree completely with the unanimous Appellate Divi- sion that under the circumstances present here ‘‘there was an abandonment of the bag.’’ (65 AD2d, at p 714.) As the above-stated analysis demonstrates, the action of the police officers in seizing defendant were totally rea- l5a sonable and beyond reproach. Thus, this is not the typical case where the theory of abandonment is utilized to explain the dissipation of taint flowing from illegal activity. (E.g., People v Boodle, 47 NY2d 398, cert den 100 S Ct 461; People v Townes, 41 NY2d 97.) Instead, the record reveals that this is a case where defendant attempted to divest himself of the drugs and gun so that no incriminating evi- dence could be discovered by the police who were rightfully in pursuit. When ‘‘[t]he actions of defendant indicate an intent to purposefully divest himself of possession of the [prop- erty]’’, an abandonment will be said to have occurred. (People v Brown, 40 AD2d 527, 528.) Here, there can be no doubt but that defendant, by throwing the vanity case on the pile of junk in the corner of the basement, intended to rid himself of the case containing incriminating evidence. He obviously did not harbor an expectation of retrieving the case, nor is there any evidence that he threw the case in the corner after the police arrived. Rather, defendant attempted to divest himself forever of the damning evidence before the law enforcement officers appeared. For this reason, the warrantless search of the vanity case was proper, inasmuch as defendant abandoned the case, thus relinquishing his privacy interest therein. Accordingly, since the seizure of defendant and the search of the vanity case were eminently proper, I would affirm the order of the Appellate Division. * * * Order reversed, motion to suppress granted and indictment dismissed. Opinion by Meyer, J. All concur except Jasen, J., who dissents and votes to affirm in an opinion in which Gabrielli and Wachtler, JJ., concur. Decided July 3, 1980 APPENDIX B Judgment and Opinion of Appellate Division, First Department (October 4, 1979) 17a Order of the Appellate Division Appealed From At a term of the Appellate Division of the Supreme Court held in and for the First Ju- dicial Department in the County of New York, on 4th day of October, 1979 Present—Hon. Arnold L. Fein, Justice Presiding Joseph P. Sullivan Myles J. Lane Vincent A. Lupiano J. Robert Lynch Justices Order of Affirmance on Appeal from Judgment 6098 rr THE PEOPLE OF THE STATE oF New York, Respondent, against Arcuig Wiuu1AmM Howarp, Defendant-Appellant. Gi An appeal having been taken to this Court by the defendant-appellant from the judgment of the Supreme Court, Bronx County (Cohen, J.), rendered on January 2, 1979 (Cohen, J., at plea and sentence; Lowe, J., at suppres- sion), convicting defendant of criminal possession of a controlled substance in the third degree, and said appeal having been argued by Mr. Henry Winestine of counsel 18a for the appellant, and by Mr. Cary W. Sucoff of counsel for the respondent; and due deliberation having been had thereon, It is unanimously ordered and adjudged that the judg- ment so appealed from be and the same is hereby, in all things, affirmed, without prejudice to a renewed application to reduce sentence before the sentencing court. See Penal Law, § 60.09, effective September 1, 1979. ENTER: Joseph J. Lucchi Clerk. Counsel for appellant is referred to § 606.5, Rules of the Appellate Division, First Department. APPENDIX C Judgment and Opinion of Appellate Division, First Department (November 16, 1978) 19a Order of the Appellate Division on the Prior Appeal At a term of the Appellate Division of the Supreme Court held in and for the First Ju- dicial Department in the County of New York, on November 16, 1978 Present—Hon. Theodore R. Kupferman, Justice Presiding Harold Birns Arnold L, Fein Arthur Markewich Leonard H. Sandler, Justices 3489 A Tue Prop.e or THE Stare or New York, Appellant, against Arcure Wiuui1Am Howarp a/k/a WILLIAM Arcuiz Howarp, Defendant-Respondent. ef An appeal having been taken to this Court by the appel- lant from the order of the Supreme Court, Bronx County (Lowe, J.), entered on June 5, 1978, granting defendant’s motion to suppress physical evidence pursuant to CPL 710.20, and said appeal having been argued by Mr. Alan D. Marrus of counsel for the appellant, and by Mr. Henry Winestine of counsel for the respondent; and due delibera- 20a tion having been had thereon, and upon the memorandum decision of this Court filed herein, It is unanimously ordered that the order so appealed from be and the same is hereby reversed, on the law and the facts, and the motion to suppress denied, and the matter remanded for further proceedings. Findings of fact in- consistent herewith are reversed. ENTER: Joseph J. Lucchi Clerk. 2la Opinion of the Appellate Division on the Prior Appeal Kupferman, J.P., Birns, Fein, Markewich, Sandler, JJ. 3489 ee Tur Prope or THe Stare or New York, Appellant, A.D. Marrus agamst Arcure Witu1am Howarp a/k/a WILLIAM Arcuie Howarp, Defendant-Respondent. H. Winestine A I Order, Supreme Court, Bronx County (Lowe, J.) en- tered June 5, 1978, granting the defendant-respondent’s motion to suppress physical evidence pursuant to CPL Sec. 710.20, unanimously reversed on the law and the facts, and the motion to suppress denied; and the matter remanded for further proceedings. Findings of fact inconsistent herewith are reversed. Two police officers in plainclothes and in an unmarked car in a high crime area observed the defendant carrying a small piece of luggage variously described as a woman’s vanity case or a square lunch box. Because he looked suspicious, one of the officers came abreast of him, dis- played his police shield and said ‘‘police officer, I would 22a like to speak to you’’. The defendant ignored the police, and when they repeated the statement, the defendant began to run and climbed an iron fence, with one of the police officers in pursuit. A civilian also joined the chase and followed the defendant into a basement where he saw him throw the bag into a corner among some old furniture. The defendant then ran to the opposite wall and tried to escape through a small window. The civilian held him until the police arrived. The officer could not find the bag, but the civilian pointed to it, and when the officer opened it, he discovered a large amount of heroin in glassine envelopes and a revolver. The officers’ actions were proper throughout the entire incident, and the motion to suppress should have been de- nied. Under the circumstances heretofore disclosed, the police were entitled to pursue the defendant. People v. Rosemond, 26 N. Y. 2d 101; People v. Archiopoli, 39 A. D. 2d 748. Further, there was an abandonment of the bag. People v. Brown, 40 A. D. 2d 527. Order filed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0558%3A1. Public record. Not legal advice.