People v. Monsanto

Judgment Supreme Court, New York County, rendered August 3, 1977, after a hearing on a motion to suppress physical evidence, convicting the defendant after a plea of guilty to the crime of attempt to commit the crime of criminal possession of a dangerous weapon in the third degree, reversed, on the law, the judgment vacated, the motion to suppress granted, and the indictment dismissed. The defendant, Dennis [577] Monsanto, was observed by Officers Sener and Maffia walking in front of a building on Lexington Avenue. The officers also observed through the glass doors of that building that two people were standing in the vestibule area and appeared to be having an argument. Officer Maffia entered the vestibule area. The other officer approached the defendant Monsanto and asked him what he was doing. He did not give Monsanto an opportunity to answer but, rather, pressed a second question: whether Monsanto knew the two people in the hallway. Monsanto denied knowing them. The officer then directed Monsanto into the hallway. Meanwhile, in the hallway, Officer Maffia was frisking one Raymond Perez, who was facing the wall with his hands stretched upward against the wall. The second person observed in the hallway was in a corner of the vestibule watching the proceedings. When Officer Sener came into the hallway, no weapons had yet been found in the possession of either Perez or Monsanto. Ultimately, Monsanto was found to be in possession of a weapon and an ammunition clip. The hearing court denied Monsanto’s motion to suppress the physical evidence, and Monsanto pleaded guilty to the crime of attempt to commit the crime of criminal possession of a weapon in the third degree. We would reverse the determination of the hearing court and grant the motion to suppress. The observations of Monsanto by the police were insufficient for them to conclude that he was a participant in any illegal activity. His conduct of walking in front of the building on Lexington Avenue was equally consistent with innocent activity. There was nothing other than mere suspicion to connect Monsanto with the activities going on in the vestibule area. Officer Sener nonetheless directed Monsanto into the vestibule area and conceded that at that time Monsanto was not free to leave. Monsanto was not observed engaging in any overt criminal activity and was placed in custody merely for being in the vicinity of what the officers thought was the scene of a crime in progress.* This mere presence in the area was insufficient to constitute probable cause to detain Monsanto (cf. People v Martin, 32 NY2d 123; People v Griffith, 63 AD2d 138, 142). The continued detention of Monsanto, after the requested information produced an innocent response without the police having a founded suspicion that Monsanto was involved in criminal activity, was an improper seizure of his person (People v Cantor, 36 NY2d 106, 111-112), and the motion to suppress the evidence subsequently found in the defendant’s possession should have been granted (cf. People v De Bour, 40 NY2d 210; People v Cantor, 36 NY2d 106). Concur—Sullivan, Bloom and Lane, JJ.; Sandler, J. P. and Silverman J. dissent in separate memoranda, as follows. Footnotes [*] In fact, there was no robbery taking place in the vestibule, though the officers had thought so.