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People v. Feerick

Court of Appeals of New York

March 25, 1999, Argued ; June 8, 1999, Decided

No. 75

Opinion

 [*441]  [**853]  [***640]    Ciparick, J.

Defendants are all members of the New York City Police Department convicted of various crimes arising out of their entry into two apartments in a Manhattan building where they restrained and threatened the occupants in an attempt to recover a police radio. All four defendants challenge the legal sufficiency of the evidence supporting their convictions for official misconduct (Penal Law § 195.00 [****15]  ). Defendants also allege errors in the jury charge and assert that they are entitled to a de novo Kastigar hearing (see, Kastigar v United States, 406 US 441) 1 based on the fact that the People failed to turn over six documents comprising Rosario material that had a bearing on the pre-trial Kastigar determination. Furthermore, they contend that Rosario materials necessary for trial were not turned over by the People. Finally, defendant Rosario individually contends that he received immunity from prosecution by virtue of his testimony before a Grand Jury. The Appellate Division considered these issues and affirmed the convictions. We conclude that these claims either lack merit or are unreviewable, and affirm the convictions in all respects.

 [****16]  Factual Background 

On September 26, 1990, in attempting to recover defendant DeVito's police radio--which had been lost during a prior drug-related incident--defendants pushed their  [***641]  way into the apartment of Denise Jackson, with weapons drawn. DefendantFeerick, a lieutenant with the police force, had been instructed by  [*442]  her commanding officer to refer the lost radio matter to a detective unit for further investigation or to secure a search warrant for drugs. One apparently had been applied for, but defendants proceeded without it. In the apartment, Theresa Johnson, who was staying with Jackson at the time, was sleeping; Ben Stokes, whom defendants sought to question, rented a room from Jackson, but was not present at the time. The police awakened Johnson, restraining both women while they ransacked the apartment, removing pictures from the walls, emptying the contents of the closets, the kitchen cabinets and the refrigerator,  [**854]  and upending and ripping some of the furniture. Defendants threatened Johnson and Jackson with arrest unless they helped procure the lost radio. At some point, the officers scrawled words to the effect of "Alls [****17]  we want is the [expletive deleted] radio" on a wall of the apartment. When Maribel Delgado, Stokes's girlfriend, knocked on the door, she too was searched and detained. Defendants discovered two vials of crack cocaine in Delgado's possession and threatened her with arrest unless she told them where to find Stokes.

Delgado told them that Stokes might be in another apartment in the building. They proceeded to the second apartment and again forced their way in, with weapons drawn. Delgado was released and never charged for the drugs found on her person that day. Finding Stokes in the second apartment, defendants demanded the return of the police radio in exchange for which they would not prosecute Stokes for the 591 vials of crack cocaine they found while searching the second apartment. Defendant DeVito, back at the precinct, vouchered the vials of crack, falsely indicating on various forms that they had been recovered in the alleyway behind the building, where Stokes had dropped them while running away to avoid arrest. Later that same day, an unidentified person turned the missing radio over to the building's security personnel, and it was returned to the police.

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93 N.Y.2d 433 *; 714 N.E.2d 851 **; 692 N.Y.S.2d 638 ***; 1999 N.Y. LEXIS 1288 ****

The People of the State of New York, Respondent, v. Patricia Feerick, Mayra Schultz, John DeVito and Orlando Rosario, Appellants.

Prior History:  [****1]  Appeal, by permission of an Associate Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered March 24, 1998, which affirmed judgments of the Supreme Court (Joan Sudolnik, J., at Kastigar hearing [see, Kastigar v United States, 406 US 441]; Bonnie Wittner, J., at trial and sentence), rendered in New York County upon verdicts convicting each defendant of unlawful imprisonment in the second degree, coercion in the second degree, criminal trespass in the second degree, and official misconduct, and convicting defendant Orlando Rosario of perjury in the first degree, and defendant John DeVito of falsifying business records in the first degree.

 People v Feerick, 241 AD2d 126, affirmed.

 People v Schultz, 241 AD2d 126, affirmed.

 People v DeVito, 241 AD2d 126, affirmed.

 People v Rosario, 241 AD2d 126, affirmed.

Disposition: Order affirmed.

CORE TERMS

misconduct, radio, reopened, unauthorized, worksheets, arrest, pre-trial, cross-examine, servant, novo

Criminal Law & Procedure, Abuse of Public Office, Illegal Political Activity, Penalties, Governments, Legislation, Types of Statutes, Criminal Offenses, General Overview, Trials, Burdens of Proof, Prosecution, Acts & Mental States, Mens Rea, Specific Intent, Interpretation, Evidence, Inferences & Presumptions, Constitutional Law, Fundamental Rights, Search & Seizure, Exigent Circumstances, Exclusionary Rule, Exceptions to Exclusionary Rule, Search Warrants, Warrantless Searches, Consent to Search, Consent to Search, Exigent Circumstances, Jury Instructions, Particular Instructions, Examination of Witnesses, Cross-Examination, Discovery & Inspection, Discovery by Defendant, Preliminary Proceedings, Standards of Review, De Novo Review, Appeals, Self-Incrimination Privilege, Immunity