THE PEOPLE & C., RESPONDENT, v. FRANK C. BATTAGLIA, APPELLANT.
86 N.Y.2d 755, 655 N.E.2d 169, 631 N.Y.S.2d 128
July 5, 1995
4 No. 163 (1995 NY Int. 176)
Decided July 5, 1995
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Donald V. Nihoul, for Appellant.
Grace M. Hanlon, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed. Defendant's
vehicle was stopped by the police at 3:00 in the morning for
proceeding the wrong way down a one-way street. The driver of the
vehicle provided what the police rationally concluded was a false
identification. In our view, this constitutes sufficient record
support for the lower courts' findings that the police possessed a
founded suspicion of criminality justifying a common-law inquiry in
the form of a request for defendant to consent to a search of the
vehicle (People v Hollman, 79 NY2d 181, 191-192). Because this
determination involves a mixed question of law and fact, beyond our
power of review to the extent there is a finding below with record
support (see, Matter of Gissette Angela P., 80 NY2d 863, 864), our
review proces s is exhausted.
SMITH, J. (dissenting):
Because I believe that there was no basis for the officer to ask
defendant to search the trunk, I dissent and vote to reverse. At 3:00
a.m. on January 31, 1992 in the city of Jamestown, New York,
defendant's car, driven by another individual, was stopped for
proceeding the wrong way down a one way street. The officer stopping
the vehicle transmitted his stop over the police radio. The officer's
transmission was heard by a fellow office r who came to the scene to
assist.
Upon arrival at the scene, the second officer was informed by the
first officer, who was seated in his patrol car issuing citations for
the traffic violation, that the driver had given a false name because
a computer check using the name given had come b ack negative. The
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Donald V. Nihoul, for Appellant.
Defendant's vehicle was stopped by the police at 3:00 in the morning for proceeding the wrong
In our view, this constitutes sufficient record support for the lower courts' findings that
SMITH, J. (dissenting):
Because I believe that there was no basis for the officer to ask defendant to search the
The officer's transmission was heard by a fellow office r who came to the scene to assist.
Upon arrival at the scene, the second officer was informed by the first officer, who was
After the supervisor's arrival, he left the scene, apparently to research a point of law, and
A third officer arrived at approximately 3:45 a.m., apparently after the entire vehicle had
Additionally, at that point, the officers were clearly entitled to request information from
However, we conclude that the facts known to the second officer did not justify a request to
Indeed, the police were properly informed by the driver that the car belonged to defendant,
Judge Smith dissents and votes to reverse in an opinion in which Judges Titone and Ciparick
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