People v. Charles J.

• Citation: 73 A.D.2d 322,425 N.Y.S.2d 978
• Parties: The PEOPLE of the State of New York, Respondent, v. CHARLES J., Defendant-Appellant.
• Decision Date: 20 March 1980
• Court: New York Supreme Court — Appellate Division

Page 978

425 N.Y.S.2d 978

73 A.D.2d 322

The PEOPLE of the State of New York, Respondent, v. CHARLES J., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 20, 1980.

Joseph Calluori, New York City, of counsel (William E. Hellerstein, New York City, atty.), for defendant-appellant.

Christina M. Campriello, Pleasantville, of counsel (Mark Dwyer, New York City, with her on the brief; Robert M. Morgenthau, New York City, atty.), for respondent.

Before BIRNS, J. P., and SANDLER, SULLIVAN, BLOOM and CARRO, JJ.

SULLIVAN, Justice.

At issue is the legality of a search predicated upon the transfer of a single glassine envelope, approximately one to one and one-quarter inches long by one-half to five-eighths of an inch wide, in circumstances which indicated to a police officer surveying the exchange that a sale of heroin had taken place. Certain uncontroverted facts were established at the suppression hearing.

On the afternoon of February 26, 1977, at approximately 1:30 p. m., Police Officers Gerrish and Evans stationed themselves on the second floor of an abandoned building at 300 West 128th Street and, using binoculars, began observing the intersection of West 128th Street and 8th Avenue and the adjacent sidewalks. This intersection is within the 32nd precinct, to which the officers were assigned.

During the seven years that he had been assigned to the 32nd precinct Officer Gerrish had made approximately one hundred arrests for narcotics violations, at least seventy-five of which had involved heroin. Of the heroin arrests thirty to forty had taken place at the intersection of 128th Street and 8th Avenue, and he had made twenty-five to thirty arrests on his personal observations of transactions between individuals previously unknown to him. In addition, Officer Gerrish had received training in the recognition and packaging of narcotics at the Police Academy.

Some ten minutes after taking up his observation post, Gerrish began to focus his attention on defendant, who was part of a group congregated on the northeast corner of the intersection, approximately seventy-five to one hundred feet away. Defendant was observed in brief conversations with passers-by who would approach, speak to him, and then walk away. While others in the group would come and go, defendant remained in the same location, on the corner, sometimes leaning against a building on 8th Avenue, at other times standing away from the building, but never farther than a few feet. The composition of the group changed throughout the period of observation, varying in size from as few as three or four to as many as ten to twelve.

At approximately 2:25 p. m. an unidentified male wearing an imitation leather coat approached defendant. Through his binoculars Gerrish observed defendant reach into the right hand pocket of a sweater he was wearing under his jacket and remove a white glassine envelope, which he passed to the male in the leather jacket. Gerrish did not see any exchange of money.

The officers immediately left their observation post. According to plan, Gerrish was to take defendant into custody while Evans, to whom Gerrish had furnished a description, was to apprehend the man in the leather jacket. ¹ When Gerrish approached defendant, he immediately reached into defendant's right hand sweater pocket and removed several glassine envelopes. Gerrish informed defendant that he was under arrest and advised him of his Miranda rights. Additional glassine envelopes were recovered from defendant's left hand sweater pocket. Later, at the station house, defendant admitted possession of sixteen glassine envelopes. ² Subsequent analysis showed that the glassine envelopes contained heroin.

The suppression court found Officer Gerrish's testimony credible. Conceding that the mere passing of a glassine envelope in a neighborhood known for narcotics transactions is not a sufficient basis for an arrest, the court held that the facts and circumstances surrounding the transfer here were, nevertheless, sufficient to raise the level of inference from suspicion to probable cause. We agree.

Just four months ago, in People v. Hester, 71 A.D.2d 121, 421 N.Y.S.2d 569, we held that a sidewalk transfer of three bundles of glassine envelopes in a high crime area, accompanied by furtive actions (looking up and down the street) on the part of both transferor and transferee, did not constitute probable cause. In so doing we reaffirmed the principle, long espoused by this court, and first enunciated, as dictum, by the Court of Appeals in People v. Corrado, 22 N.Y.2d 308, 313, 292 N.Y.S.2d 648, 651, 239 N.E.2d 526, 529, that the mere passing of a glassine envelope, the contents of which the police suspect might be narcotics, was insufficient to establish probable cause to arrest. (See People v. Goss, 67 A.D.2d 876, 413 N.Y.S.2d 684; People v. Thomas, 62 A.D.2d 945, 404 N.Y.S.2d 11; see, also, People v. Maldonado, 59 A.D.2d 692, 398 N.Y.S.2d 682.)

No especial formula exists by which to measure the reasonableness of a police officer's conclusions after he has observed what he perceives to be a drug transaction. In People v. Brown, 24 N.Y.2d 421, 423, 301 N.Y.S.2d 18, 20, 248 N.E.2d 867, 868, the Court of Appeals found a lack of probable cause where "(t)he observed activity on which the arrest was based (consisted of): a high crime area, a suspected narcotic addict, a meeting, parting, return, and movement of hands." On the other hand, in People v. Smith, 24 N.Y.2d 841, 842, 300 N.Y.S.2d 850, 851, 248 N.E.2d 599, 600, the court upheld a seizure based upon police observations on two separate occasions, only three days apart, of a series of at least ten callers each day, who had knocked on an apartment door, conversed briefly with the occupant, and eventually handed him money. In addition, in People v. Valentine, 17 N.Y.2d 128, 269 N.Y.S.2d 111, 216 N.E.2d 321, a search was sustained which followed police observations of the defendant who, standing on a street corner, was approached by others and handed money in bill form on at least six occasions. In People v. Cohen, 23 N.Y.2d 674, 295 N.Y.S.2d 927, 243 N.E.2d 146, the officer's suspicions based on his observations were buttressed when he overheard conversations between the suspects. And, in People v. Quinones, 33 N.Y.2d 811, 350 N.Y.S.2d 907, 305 N.E.2d 916, the officer was close enough to the transaction to recognize the contents of the envelopes being transferred, while in People v. Rowell, 27 N.Y.2d 691, 314 N.Y.S.2d 10, 262 N.E.2d 217, he was in such close proximity that he was able to observe a quantity of glassine envelopes on the floor of the automobile.

In People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188, the Court of Appeals had occasion to reassert the principle that the mere passing of a glassine envelope does not provide probable cause in affirming the suppression of narcotics seized by a police officer who, while on a stakeout in a neighborhood having a high crime rate, happened to notice the passing of a glassine envelope, the contents of which he could not see. The court noted that the hearing court had failed to "credit or accept the proof regarding the (defendant's) quick look or the ambiguous testimony concerning (the) closing of her hand tightly or that the envelope appeared white all part of the fact-finding process." (Id. at 385, 368 N.Y.S.2d at 512, 329 N.E.2d at 191.) It recognized its lack of power to review questions of fact, citing, inter alia, People v. Leonti, 18 N.Y.2d 384, 390, 275 N.Y.S.2d 825, 830, 222 N.E.2d 591, 594, and Cohen and Karger, Powers of the New York Court of Appeals (rev. ed.), § 198, p. 742. The court explicitly left open the issue of whether, "on different inferences or dissimilar credibility considerations", other findings of fact indicative of "additional bases for probable cause", would have been sufficient to justify the police actions. (Id. at 386, 368 N.Y.S.2d at 513, 329 N.E.2d at 192.)

Shortly thereafter, in People v. Alexander, 37 N.Y.2d 202, 371 N.Y.S.2d 876, 333 N.E.2d 157, the Court of Appeals sustained a seizure of heroin upon a hearing court's finding that the arresting officer "saw what looked like plastic envelopes what they call glassine envelopes, in the manner in which he described it in this courtroom, and that seeing that at a moment's notice, he ran out of the car, and as he got there the defendant now realizing that there was a (uniformed) officer coming attempted to get rid of it in any way he did, and he dropped it or threw it anyway you want to describe the manner." (Id. at 203, 371 N.Y.S.2d at 877, 333 N.E.2d at 157-158.) The court emphasized the officer's observation of a quantity of glassine envelopes, "the telltale sign of heroin", citing People v. Corrado, 22 N.Y.2d...