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People v. De Gina

39 N.Y.2d 96 Court N.Y. Decision date 1976-03-30 English

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The People of the State of New York, Respondent, v William De Gina, Appellant.
Argued February 20, 1976;
decided March 30, 1976
p. 97
Arnold E. Wallach for appellant.
I. The search and seizure of the car and the matchbook in it were violative of appellant’s right of privacy guaranteed by the Fourth and Fourteenth Amendments to the Federal Constitution as well as article I (§ 12) of the New York State Constitution, because the authorities should have first procured a search warrant, the authorities knowing in advance when they went to appellant’s premises about the car that was seized. (United States v Jeffers, 342 US 48 ; United States v Davis, 482 F2d 893 ; Coolidge v New Hampshire, 403 US 443 ; Camara v Municipal Ct., 387 US 523 ; People v Spinelli, 35 NY2d 77 ; People v Gleeson, 36 NY2d 462 ; Shapiro v Thompson, 394 US 618 ; Griffin v Breckenridge, 403 US 88 ; Clay v United States, 239 F2d 196 ; Chambers v Maroney, 399 US 42 .) II. The in-court identification of appellant by Donna Cahill was not based on independent evidence untainted by this witness’ identification of appellant at the lineup. (United States v Wade, 388 US 218 ; Gilbert v California, 388 US 263 ; People v Christman, 23 NY2d 429 ; United States v Sanders, 479 F2d 1193 ; People v Malinsky, 15 NY2d 86 .) III. The court’s charge to the jury as to reasonable doubt was prejudicial. (People v Friedland, 2
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App Div 332 ; Vachon v New Hampshire, 414 US 478 .) IV. Appellant was denied a fair trial when the court allowed evidence of other possible crimes being committed for which appellant was not indicted and which were not connected with appellant. (People v Condon, 26 NY2d 139 ; People v Fiore, 34 NY2d 81 .) V. The prosecutor’s summation exceeded the bounds of fair comment. (People v Banks, 40 AD2d 833 ; Donnelly v DeChristoforo, 416 US 637 .)
Patrick D. Monserrate, District Attorney, for respondent.
I. The trial court did not err when it denied (following an evidentiary hearing) a motion made by defendant to suppress the use in evidence of a book of matches and photographs of his wife’s car. (Cardwell v Lewis, 417 US 583 ; Chambers v Maroney, 399 US 42 .) II. The trial court did not err when it permitted (after a fully evidentiary hearing) the witness Donna Cahill to give in-court evidence identifying defendant as the person involved in the subject transactions. (United States v Wade, 388 US 218 ; Wong Sun v United States, 371 US 471 ; People v Harden, 30 NY2d 930 ; Neil v Biggers, 409 US 188 ; United States ex rel. Lucas v Regan, 503 F2d 1 .) III. Any question as to the sufficiency of the court’s charge to the jury or the propriety of the prosecutor’s comments in summation may not have been preserved for review by this court; and if they had been, neither the charge nor the summation contained (or lacked) material requiring a reversal of defendant’s convictions. IV. The trial court did not err when it permitted the People to present circumstantial evidence concerning other activities of defendant on the day in question. (People v Molineux, 168 NY 264 .)

Memorandum. The order of the Appellate Division should be affirmed.

On July 19, 1972 a man driving a blue Volkswagen convertible, with a white top and a dent in the right rear panel, attempted to pass forged checks at two banks in the Binghamton area. Several tellers at the "drive up” windows were able to describe the man and the car he was driving. At one bank the man had an argument with the teller and a nearby parking lot attendant recorded the license plate number of the car. As the car exited he noted that there was a different license on the rear and he recorded that number as well. One of the plates had been reported stolen. The other was regis

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tered to a blue Volkswagen belonging to the defendant’s wife who resided in Westchester County.

This information was relayed to the State Police in Westchester who, arriving at the residence on Friday, July 21, 1972, found that the defendant was not home but the car was in the garage. They informed the defendant’s wife that they would have to seize the vehicle. Preparing to impound the car the police removed the contents and in the process found a matchbook from a Binghamton restaurant. While still on the premises the officers received phone calls from the defendant who told them not to remove the car and then from the defendant’s attorney who consented to surrender the car on Monday morning.

Seeing the car at a repair shop on Monday morning the police seized it and arrested the defendant. Photographs were taken of the two different license plates affixed to the vehicle, and of the dent in the rear panel.

The defendant’s motion to suppress the vehicle and the matchbook was denied. Following a jury trial he was convicted, as charged of two counts of criminal possession of a forged instrument (Penal Law, § 170.25).

Since the vehicle belonged to the defendant’s wife there is some question as to whether he has standing to challenge the search and seizure. That however is not necessary to the resolution of this appeal.

In our view the defendant consented to surrender the vehicle on Monday morning, as indicated, and has no cause to complain of the photographs subsequently taken showing the license plates and the dent. With regard to the matchbook previously seized and later admitted in evidence at the trial, we find no basis for reversal. Even assuming, as the defendant urges, that the seizure was illegal, admission of the matchbook would unquestionably be harmless in view of all the other evidence placing the vehicle at the scene of the crimes.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed in a memorandum.

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