Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PEOPLE STATE NEW YORK v. EDWARD LEWIS (12/18/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.44026 <http://www.versuslaw.com>; 306 N.Y.S.2d 197; 33 A.D.2d 193 December 18, 1969 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.EDWARD LEWIS, APPELLANT Appeal from a judgment of the Supreme Court (Arthur Markewich, J.), rendered June 10, 1968 in New York County convicting defendant of the crime of possession of a weapon as a felony. Max Feigin for appellant. Bennett L. Gershman of counsel (Michael R. Juviler with him on the brief; Frank S. Hogan, District Attorney), for respondent. McGivern, J. Steuer and Bastow, JJ., concur with McGivern, J.; Capozzoli, J. P., dissents in opinion. Author: Mcgivern


Appeal from a judgment of the Supreme Court (Arthur Markewich, J.), rendered June 10, 1968 in New York County convicting defendant of the crime of possession of a weapon as a felony.

McGivern, J. Steuer and Bastow, JJ., concur with McGivern, J.; Capozzoli, J. P., dissents in opinion.

Author: Mcgivern

 This is an appeal from a judgment entered June 10, 1968, County of New York, convicting the defendant, after trial before a court and jury, of the crime of possession of a weapon as a felony (Penal Law, ยง 265.05).

The appeal is singular in that the District Attorney in his brief on this appeal, agreeing with the defendant, states "that under the circumstances of this case, the search of the automobile was improper and, accordingly, concede that the judgment be reversed." We however, do not agree. Nor need we accept his suggestion. "Confessions of error are, of course, entitled to and given great weight, but they do not 'relieve this Court of the performance of the judicial function.' Young v. United States, 315 U. S. 257, 258 (1942)."

Disposition

Judgment affirmed.

Capozzoli, J. P. (dissenting).

While it is true that the Supreme Court has indicated that it is only unreasonable searches that are prohibited by the Fourth Amendment, it has nevertheless emphasized that there are few exceptions to the requirement of a warrant. (Amador-Gonzalez v. United States, 391 F. 2d 308.)

There is a well-recognized exception that, as an incident to arrest, the arresting officers may search the person arrested and his immediate surroundings, without a search warrant. In this connection the language used in Amador-Gonzalez v. United States (supra, p. 314) of the opinion is particularly helpful. "A search incident to an arrest must have as one or more of its purposes the discovery of (1) the fruits of the crime; (2) instrumentalities used to commit the crime; (3) weapons or like material which put the arresting officer in danger or might facilitate escape; (4) contraband, the possession of which is a crime [citing cases] and * * * (5) material which constitutes evidence of the crime or evidence that the person arrested has committed it [citing cases]".

Again (p. 316) the court said: "An 'incidental' search is the exception to the command of the Constitution that all searches be with search warrants. The incidental search must be truly incidental to a primary purpose to arrest. * * *".

In view of the fact that the arrest was made on the basis of an old warrant, it cannot be said that the purpose of the search was to discover any of the articles mentioned in (1), (2), (4) or (5), supra. It is conceded that the officers had no search warrant and that the gun was concealed under the seat and not exposed to view. Therefore, if the search can be supported on any ground, it must be as an incident to a lawful arrest, for the purpose of protecting the officer, under (3), supra.

In the case of Preston v. United States (376 U. S. 364) three men in a parked car were arrested for vagrancy, searched for weapons and then taken to police headquarters. The car, which had not been searched when the arrest was made, was driven by an officer to a police station, from which it was towed to a garage. Soon after the men had been booked, the police officers went to the garage, searched the car and found two loaded revolvers in the glove compartment. They were unable to open the trunk and returned to the station. One of the officers went back to try to open the trunk. He did so and found caps, women's stockings (one with mouth and eye-holes), ropes, pillow slips, an illegally manufactured license plate, equipped to be snapped over another plate and other items. Thereupon one of the three men confessed that he and two others had intended to rob a federally insured bank 51 miles away from where the arrest was made. In considering the question of whether the search of the car was a reasonable one, within the exception of the constitutional amendment, the court (pp. 366-367) said the following:

"Common sense dictates, of course, that questions involving searches of motor cars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motor car. * * * But even in the case of motor cars, the test still is, was the search unreasonable. Therefore, we must inquire whether the facts of this case are such as to fall within any of the exceptions to the constitutional rule that a search warrant must be had before a search may be made.

"It is argued that the search and seizure was justified as incidental to a lawful arrest. Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. * * * The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime -- things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.