People v. Bennett
| Decision Date | 15 April 1975 |
| Citation | 366 N.Y.S.2d 639,47 A.D.2d 322 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Manley BENNETT, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert A. Naidus, New York City, of counsel (William E. Hellerstein and William J. Gallagher, New York City), for defendant-appellant.
Karen Zelfman Bell, New York City, of counsel (Mario Merola, Dist. Atty.), for respondent.
Before STEVENS, P.J., and MURPHY, LUPIANO, CAPOZZOLI and LANE, JJ.
Following a visit to his cousin in The Bronx, defendant and his two travelling companions, all born in Jamaica, West Indies, but then residents of Massachusetts, entered defendant's car, which was registered in and bore Massachusetts license plates, for the trip home. Two officers in a marked radio car observed defendant's car and its passengers about a minute and, although perceiving no violation of law, claimed that they nevertheless decided to stop the car for a routine license and registration check. Upon reaching the now stopped car, both officers testified to seeing an inch-long, white, thinly-rolled cigarette, crimped at one end and about one-quarter to one-half the diameter of a commercial cigarette, burning in an ashtray from which an odor similar to that of burning hemp emanated; which indicated to them the presence of marijuana. Officer Prakin, who conceded that his formal narcotics training did not include any demonstration stration as to the actual odor of cannabis, first testified that the cigarette was burning in an ashtray on the console between the bucket seats of the car, but later, after the automobile was actually viewed by the court, jurors and witnesses, acknowledged that the ashtray was, in fact, on the dashboard.
Defendant and his companions were then ordered out of the car, arrested for possession of the cigarette, and searched. (A .38 calibre revolver was found on appellant, but no further mention thereof appears in the record as to whether it was unlawfully possessed and, in any event, is not a part of this indictment.) After all three defendants were handcuffed, another unit was called to assist in transporting defendants and the car to the local precinct. While the arresting officers drove defendants to the precinct house in the police car an unknown assisting officer (whose name was never entered in either arresting officer's memo book and who never testified) drove defendant's car from the place of arrest to the precinct house, where he left it.
Upon arrival, Officer Prakin now for the first time searched defendant's car, while his brother officer escorted the defendants into the stationhouse. Officer Prakin allegedly found therein: a tobacco pouch on the dashboard in front of the passenger seat which contained marijuana; a brown paper bag on the floor behind the passenger seat, which contained a large black pipe, a scale and a smaller paper bag containing cannabis; and a sports jacket on the back seat containing 5 envelopes of the sort which could be used to package marijuana. The total amount of marijuana was 3/4 of an ounce.
The alleged marijuana cigarette which precipitated the arrest was never produced because, according to the arresting officer, it had 'burned itself out'. (The record does not disclose how the defendants could be booked for possession of the nonexistent cigarette, but apparently the problem was solved with the new finding of marijuana after the search of defendants' car.)
Defendant and his co-defendants testified on a pretrial hearing to suppress the physical evidence seized. Each claimed he had never previously been arrested and denied that any one of them had smoked a marijuana cigarette on the date of their arrest; although all three admitted prior extensive use of cannabis. All three defendants also testified that a marijuana cigarette will not burn itself out unless continuously puffed upon. The trial court refused to take judicial notice of such fact. We claim no greater expertise on the subject than the learned Trial Justice below and, in the absence of expert testimony on the matter, hesitate to offer any opinion on such issue.
Following denial of their suppression motion, all three defendants were tried and found guilty by a jury of criminal possession of a dangerous drug in the sixth degree. Appellant Bennett was sentenced to a one-year term of imprisonment; which he has already served.
Since, as above-noted, the marijuana cigarette was never recovered, defendant's guilt stemmed from his alleged possession of the cannabis and related paraphernalia recovered from his car after the arrest. Such possession was established solely through the application of the statutory provision which makes the presence of a dangerous drug (now referred to as a 'controlled substance') in an automobile 'presumptive evidence of knowing possession thereof by each and every person In the automobile at the time such controlled substance was found * * *.' (P.L. § 220.25(1); italics added.)
Passing for the moment the sufficiency of the evidence to establish defendant's guilt, we turn first to the propriety of the stop which preceded the arrest and subsequent search.
Though the current law governing warrantless searches and seizures of automobiles has...
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