THE PEOPLE &C. EX REL. EDWIN GONZALEZ, A/K/A EDWIN RODRIQUEZ, APPELLANT, v.
WARDEN, ANNA M. KROSS CENTER, &C., RESPONDENT.
79 N.Y.2d 892, 590 N.E.2d 234, 581 N.Y.S.2d 649 (1992).
February 20, 1992
1 No. 127 SSM 1
Decided February 20, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Dominic J. Sichenzia, for Appellant.
Submitted by Burton Herman, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed, without costs
and the certified question not answered as unnecessary.
Defendant was paroled on July 27, 1988. On October 21, 1988, he was
stopped by New York City Police Officers who recovered a gun from him.
Defendant was arrested and charged with criminal possession of a
weapon, second degree, but the criminal charges were subsequently
dismissed. As a result of the arrest, however, a parole revocation
proceeding was instituted and defendant's parole was revoked.
Defendant subsequently instituted this habeas corpus proceeding
contending that the gun was improperly received at the revocation
proceeding. A Mapp Hearing was held, the motion to suppress denied and
the petition dismissed. On appeal petitioner challenged the
suppression ruling.
At the suppression hearing, Officers Pao and Cincotta testified that
while investigating a robbery in Brooklyn, they spoke with a homeless
man, named Frankie Gonzalez (not related to defendant), whom Officer
Pao knew and had spoken with on numerous occasions. In the past,
Gonzalez had given information to the police which led to the arrest
of another individual for possession of a hypodermic needle. As they
were speaking, three men, including defendant, walked toward them.
Gonzalez pointed to defendant and told the officers that the man in
the middle in the black jacket (defendant) "always carries" a "silver
gun" and that he robs drug dealers. When asked how he knew this,
Gonzalez stated that he had seen defendant with the gun.
The officers got into their car and drove toward defendant who had
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
for Appellant.
Defendant was arrested and charged with criminal possession of a weapon, second degree, but
As a result of the arrest, however, a parole revocation proceeding was instituted and
Defendant subsequently instituted this habeas corpus proceeding contending that the gun was
At the suppression hearing, Officers Pao and Cincotta testified that while investigating a
Gonzalez had given information to the police which led to the arrest of another individual
Gonzalez pointed to defendant and told the officers that the man in the middle in the black
The officers got into their car and drove toward defendant who had turned onto another street
The police stopped the car across the street from defendant, and the two officers exited with
Defendant contends that the officers' approach with drawn guns was illegal because it was
We find it unnecessary to resolve the issue of the legality of approaching defendant with
We conclude that defendant's act of displaying his gun after the officers had identified
The case is distinguishable from People v Cantor (36 NY2d 106, supra) where the defendant
The facts in this case are closer to those involved in People v Townes in which the defendant
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