People v. Cadby

• Decision Date: 07 April 1978
• Citation: 62 A.D.2d 52,403 N.Y.S.2d 940
• Parties: PEOPLE of the State of New York, Respondent, v. Walter CADBY, Appellant. PEOPLE of the State of New York, Respondent, v. Terry M. KORTUM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 940

403 N.Y.S.2d 940

62 A.D.2d 52

PEOPLE of the State of New York, Respondent, v. Walter CADBY, Appellant.

PEOPLE of the State of New York, Respondent, v. Terry M. KORTUM, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 7, 1978.

Doyle, Diebold, Bermingham, Gorman & Brown, Buffalo, for appellants (Joseph D. Bermingham, Jr., Buffalo, of counsel).

Edward C. Cosgrove, Dist. Atty., Buffalo, for respondent (John J. DeFranks, Asst. Dist. Atty., of counsel).

Before MOULE, J. P., and CARDAMONE, SIMONS, HANCOCK and DENMAN, JJ.

DENMAN, Justice.

Defendants appeal from judgments of the Supreme Court, Erie County, entered May 5, 1976, upon pleas of guilty to two counts of Criminal Possession of a Controlled Substance in the 7th degree by defendant Cadby and one count of Attempted Criminal Possession of a Controlled Substance in the 6th degree by defendant Kortum. Both defendants were sentenced to probationary terms. Defendants also appeal from orders dated December 15, 1975 and February 23, 1976, the first denying their motion to suppress evidence seized without a search warrant and the second denying their motion to reopen those proceedings because of newly discovered evidence.

During the afternoon of May 28, 1974, Howard Cohen, Linda Watson and Daniel Mardana were arrested by members of the Erie County Sheriff's Department Narcotics Squad for the sale of four and one-half pounds of alleged cocaine (later determined to be xylocaine, not a controlled substance) to an undercover deputy. While being questioned at the scene, Cohe who was upset and crying, informed Chief of Narcotics Tuttolomondo that he had received the alleged cocaine from "Rex", whose last name and address he did not know. Cohen then corrected himself, stating that he got the drugs from Linda Watson, who got them from David Feuerstein, and that he did not know where the remainder of the drugs were.

Cohen was removed to Sheriff's Headquarters where he underwent further questioning, primarily by Deputy Karam. When informed that he could get 25 years to life for the charge, and that his cooperation would be appreciated and mentioned to the District Attorney, Cohen responded to further questions regarding the source of the drugs. The information he gave led the deputies to the apartment of defendant Kortum where they found small quantities of LSD and marijuana and a quantity of a substance thought to be cocaine which substance also was later determined to be xylocaine. Defendants were arrested on the premises and were later indicted for possession of the LSD and marijuana.

At the hearing on defendants' motion to suppress that evidence, Deputy Karam testified with respect to the information given by Cohen, who, although under subpoena, could not be found to testify. He stated that Cohen said that he had picked up the alleged cocaine at an address on Prospect Avenue in Buffalo, and that he was to return to that location with the money from the sale ($45,000) by 7 o'clock that evening. Cohen is alleged to have stated further that there was marijuana, LSD and cocaine at that address, that the marijuana was in a suitcase in the back room off the kitchen, but that he did not know where the remainder of the alleged cocaine could be found in the house.

While Cohen was unsure of the address, he gave a description of the house and its surroundings and was able to locate it on a crude map drawn by one of the deputies. Cohen also provided a telephone number at which he was supposed to contact "Rex and Terry", who he now claimed supplied him with the drugs, concerning the transaction.

This information was in the possession of the deputies by 6:15 p. m., at which time they began a search warrant application and called the telephone company to determine the listing of the telephone number given by Cohen. Approximately one-half hour later, the phone company supplied the information, advising that the number was registered to a Terry Kortum at 502 Prospect Avenue. Deputy Pecoraro drove to the address and found it to comport with the description given by Cohen. A surveillance team was dispatched to watch the house.

At approximately 7:15 p. m., Deputy Karam contacted a judge of the City Court of Buffalo to alert him that a search warrant was being prepared for his signature. Sometime later a second call may have been made to the judge after an expression of anxiety by Cohen that the deputies were "blowing his chance" by their delay and that the defendants might leave prior to the completion of the application. Subsequently, preparation of the warrant application was entrusted to another member of the department and Deputy Karam and two other deputies left for the Prospect Avenue address.

When they arrived, they immediately received a radio message from the surveillance team that two men were coming out of the house. The deputies radioed Chief Tuttolomondo at Headquarters who told them to go in. The movement seen by the surveillance team was the first activity they had seen at the address. The deputies did not know who the two men were, but began running toward the house. They followed the defendants into the apartment, confronted them in the living room, and proceeded to search.

We are presented with two issues: whether there was probable cause to justify any search, and whether there were exigent circumstances such as to justify the warrantless search which took place.

The constitutional requirement of probable cause applies to all searches, whether or not conducted pursuant to a search warrant. (People v. White, 16 N.Y.2d 270, 266 N.Y.S.2d 100, 213 N.E.2d 438). As no warrant was obtained in this case, we may look to the entire record to determine whether probable cause for the search existed. (Cf. People v. Slaughter, 37 N.Y.2d 596, 376 N.Y.S.2d 114, 338 N.E.2d 622; People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644).

The basis for probable cause asserted here is the information provided by Cohen. That information must be measured by the now familiar two-pronged test first set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. That test, as refined by subsequent cases, (see, e. g., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; People v. Wirchansky, 41 N.Y.2d 130, 391 N.Y.S.2d 70, 359 N.E.2d 666) requires facts to demonstrate (1) some of the underlying circumstances from which the officer concludes that the informant is trustworthy and (2) some of the underlying circumstances from which the informant concluded that illegal activities are taking place on the premises to be searched. This latter prong has been labeled by our Court of Appeals as the "basis of knowledge" test (People v. Hanlon, 36 N.Y.2d 549, 556, 369 N.Y.S.2d 677, 682, 330 N.E.2d 631, 635).

Inasmuch as Cohen was previously unknown, his reliability and trustworthiness could not be established. The focus then shifts to the second prong to determine whether Cohen's information regarding the source and location of the drugs was reliable. We must, therefore, examine the conflicting stories given by Cohen concerning the same transaction.

The two statements were clearly contradictory. Not only does Cohen vacillate as to the source of the drugs Watson and Feuerstein on the one hand, Rex and Terry on the other but his stories are contradictory with respect to his knowledge of the location of the remainder of the alleged cocaine. In his earlier statement Cohen said that he did not know where the remainder of the cocaine was; later he said there was more cocaine at the Prospect address, although he did not know where.

Where an informant has told two stories, the function of the court is not to determine which is true but to decide whether either can be used to establish sufficient probability in light of the other. This presents a situation analogous to the impeachment of witnesses and, in this context, Cohen's two statements are clearly contradictory. (See, Larkin v. Nassau Electric RR Co., 205 N.Y. 267, 269, 98 N.E. 465, 466; McCoy v. Gorenstein, 282 App.Div. 984, 125 N.Y.S.2d 683).

The contradiction was certainly known to the authorities. The first story was told to Chief Tuttolomondo; the second to Deputy Karam. However, immediately before the raid, the deputies radioed headquarters and received permission to proceed from Chief Tuttolomondo and the Sheriff. It can hardly be contended that Tuttolomondo, as the immediate superior of the deputies about to make the raid, had no idea what the men under his direction and control were doing, or on what basis they were proceeding. The directions given the deputies support no other conclusion than that Tuttolomondo authorized the search while aware that two conflicting stories had been told by the informant.

The question is thus whether, knowing that the informant had told two contradictory stories about the same transaction, ¹ one could reasonably conclude on the basis of one of them that the law was being violated on the premises to be searched. (People v. Marshall, 13 N.Y.2d 28, 34, 241 N.Y.S.2d 417, 421, 191 N.E.2d 798, 801).

The People contend that Cohen's statement was against his penal interest and therefore reliable, relying on United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, and People v. Wright, 37 N.Y.2d 88, 371 N.Y.S.2d 460, 332 N.E.2d 331. That argument cannot be sustained, however, because both statements implicate Cohen in knowing possession of the drugs and thus there is no reason why the second story should be credited over the first.

The circumstances which surround the rendition of the two stories provide no objective basis for discrimination between them. One can conceive of circumstances in which the authorities would have valid reason not to credit one of two conflicting statements; however, the record does not reflect even a suspicion that Cohen's initial story was a fabrication in whole or in part. Nor does a review...