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People v. Skrine

Appellate Division of the Supreme Court of New York, Second Department
Dec 15, 1986
125 A.D.2d 507 (N.Y. App. Div. 1986)

Opinion

December 15, 1986

Appeal from the Supreme Court, Queens County, Glass, J., O'Dwyer, J.


Ordered that the judgment is reversed, on the law, the defendant's motions to suppress physical evidence and to dismiss the indictment are granted, the indictment is dismissed, and the matter remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The statute which authorizes the appearance of a person before a Grand Jury that is investigating his conduct explicitly provides that the right to appear may be exercised by giving the appropriate notice at any time prior to the filing of the indictment, even if the charges have already been submitted to the Grand Jury (CPL 190.50 [a]). Here, although the indictment had been voted, it had not yet been filed at the time the defendant notified the District Attorney of his intention to testify. Thus, the defendant was entitled to, and was deprived of his statutory right to appear, and the indictment should have been dismissed (see, CPL 190.50 [c]; Matter of Borrello v Balbach, 112 A.D.2d 1051; People v. Gini, 72 A.D.2d 752).

Further, the defendant's motion to suppress physical evidence should have been granted. The arrest that ultimately resulted in the discovery of a hypodermic needle in the defendant's possession occurred following an alleged purchase of narcotics by an undercover officer. The arresting officer saw the undercover officer approach a group of people, but did not observe the actual transaction. Instead, his action was predicated upon the undercover officer's radio transmission that he had just made the purchase from a "male black wearing a blue hat, blue jacket, dungarees [and] red sneakers". The defendant met that description, but the arresting officer testified that there were other male blacks and numerous blue hats and blue jackets in the group, and he could not recall at the hearing whether the defendant was the only person who met the complete description given by the undercover officer. In these circumstances, although the arresting officer was entitled to rely upon the radio transmission by the undercover officer (see, People v. Reddick, 107 A.D.2d 721, affd 65 N.Y.2d 835; People v. Bowdoin, 89 A.D.2d 986) and there was no need for that officer to testify at the hearing (see, People v. Petralia, 62 N.Y.2d 47, cert denied 469 U.S. 852), the information transmitted was insufficient to show it was more likely than not that the defendant was the person who had committed the crime (see, People v. Henley, 53 N.Y.2d 403; People v. Lane, 102 A.D.2d 829, appeal dismissed 63 N.Y.2d 865; People v. Gordon, 87 A.D.2d 636). Lazer, J.P., Mangano, Bracken and Kooper, JJ., concur.


Summaries of

People v. Skrine

Appellate Division of the Supreme Court of New York, Second Department
Dec 15, 1986
125 A.D.2d 507 (N.Y. App. Div. 1986)
Case details for

People v. Skrine

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EDWARD SKRINE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 15, 1986

Citations

125 A.D.2d 507 (N.Y. App. Div. 1986)

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