People v. Cunningham

• Decision Date: 10 July 1979
• Citation: 71 A.D.2d 559,418 N.Y.S.2d 780
• Parties: The PEOPLE of the State of New York, Respondent, v. Belinda CUNNINGHAM, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Doris CHAMBERS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 780

418 N.Y.S.2d 780

71 A.D.2d 559

The PEOPLE of the State of New York, Respondent, v. Belinda CUNNINGHAM, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Doris CHAMBERS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 10, 1979.

C. Murphy, New York City, for respondent.

R. A. Goldschlag, New York City, for defendant-appellant.

Before MURPHY, P. J., and BIRNS, FEIN, MARKEWICH and ROSS, JJ.

MEMORANDUM DECISION.

Judgments of the Supreme Court, New York County, rendered September 29, 1975, convicting appellants upon their pleas of guilty, of criminal possession of a dangerous drug in the second degree (former Penal Law, § 220.22) and imposing upon each an indeterminate sentence of up to four years, affirmed.

We do not dispute the facts as narrated in the dissenting opinion. Unlike our dissenting brother and contrary to the claim of appellants, we do, however, find the police had probable cause to enter the apartment. We therefore conclude that the evidence was lawfully seized.

Probable cause exists, "if the facts and circumstances known to the . . . officer warrant a prudent man in believing that (an) offense has been committed" (People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188, citing Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134; Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879).

Detective Maste had probable cause to believe that the occupants of apartment 5I had committed or were committing a crime, I. e., packaging large quantities of narcotics for street distribution. The police had proceeded to apartment 5I in response to a radio dispatch that shots were fired there and that the caller who had reported the occurrence described the apartment as a known narcotics location. Moments after the police had announced their arrival at the door of the apartment, Det. Maste, from a vantage point on the roof (one story above the apartment), observed one of the occupants stick her head out of the window, look around and then place on the fire escape a large orange waste basket (approximately ten to twelve inches high), a box (approximately five inches square to approximately one foot high opened at the top), both filled with multi-colored balloons, and a plastic bag filled with what Det. Maste believed to be either powder or sand. Based upon his experience as a police officer in the field of narcotics, Det. Maste knew the balloons were often used to package "narcotics (which had) to be cut down again for street sale." The logical conclusion he drew was that the occupants of the apartment were engaged in a large-scale, illegal narcotics operation. Det. Maste proceeded down the stairs inside the building from the roof to the fifth floor (where apartment 5I was located) and together with some of his fellow officers, gained access to the apartment. Once inside, they seized the evidence.

The predicate for the police conduct was not an observation such as the mere passing of an envelope (see People v. Oden, supra; People v. Thomas, 62 A.D.2d 945, 404 N.Y.S.2d 11; see also People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526) or of a tinfoil package (see People v. Elliott, 62 A.D.2d 956, 403 N.Y.S.2d 901) or of pieces of tinfoil from one person to another in return for pieces of green paper (People v. Maldonado, 59 A.D.2d 692, 398 N.Y.S.2d 682). Rather, the police action was grounded upon the totality of the facts and circumstances known to Det. Maste before he entered the apartment factors which, based on his expertise, produced probable cause.

It is not necessary to indulge in speculation, as does our dissenting brother, that "(i)f safety had permitted, the officer could have approached the balloons and plastic bag to confirm his suspicion" and thus would have known with "certitude" whether the balloons were being used as party accessories or heroin receptacles. Police conduct should be viewed in a realistic, not antiseptic setting. A police officer on the fire escape, examining the waste basket, box and plastic bags, would have been, literally, "under the gun", especially as it was known shots had been fired in the apartment. To expect the officer to stand in front of the window and clinically examine the contents of the waste basket, box and plastic bag to verify that narcotics were contained therein, stretches credulity. The test for determining the existence of probable cause does not require "certitude" that a crime was, or was being, committed.

The officers were justified in entering the apartment without a search warrant. The drugs seized herein can be readily classified as potentially readily disposable contraband even in the quantities . . . discovered in this case" (People v. Clements, 37 N.Y.2d 675, 679, 376 N.Y.S.2d 480, 484, 339 N.E.2d 170, 173; see also United States v. Manning, 2nd Cir., 448 F.2d 992). Immediate action by the police was required.

Insofar as the challenge of appellant Chambers to her sentence, we do not find that the sentence imposed was excessive or that the prosecutor interfered with the court's exercise of its sentencing discretion.

Appellant Chambers was indicted for criminal possession of a dangerous drug in the first degree (former Penal Law, § 220.23), a Class A felony. If she had been convicted of this charge, she could have been sentenced to a maximum of life imprisonment.

She was arrested while employed as a packager in a major heroin distribution operation. She admitted that this was not the first time she was working there. Accordingly, the imposition of an indeterminate sentence not to exceed four years imprisonment upon her plea of guilty to the reduced count of criminal possession of a dangerous drug in the second degree cannot be deemed excessive.

Although the court may have preferred to impose a sentence of probation, nevertheless it is clear that the court accepted the sentencing recommendations made by the prosecutor in connection with the offer of appellant Chambers' plea to the reduced count.

Finally, appellant Chambers provides no factual basis upon which to justify modification of the sentence already served (Cf., People v. Johnson, 67 A.D.2d 639, 412 N.Y.S.2d 149; People v. Michael Johns, App.Div., 415 N.Y.S.2d 8.

All concur as to Appeal No. 5553 (People v. Chambers).

All concur as to Appeal No. 5552 (People v. Cunningham), except MURPHY, P. J., and FEIN, J., who dissent in a memorandum by MURPHY, P. J., as follows:

Detective Edward Maste was the sole witness to testify at the suppression hearing. On the evening of July 30, 1973, Maste was on radio patrol duty with other officers. At about 10:15 P.M., the detective received a radio call that shots were fired at 164-72 West 141st Street, apartment 5E, in Manhattan. Maste and his fellow officers responded to this first call but they did not find any indication that shots had been fired in apartment 5E or, for that matter, in the entire building.

Maste received a second run at about 10:45 P.M. He asked for further information since the first call had proven unfounded. The radio dispatcher informed Maste that a female had called. The dispatcher also stated ". . . that it was a known narcotics location to the caller of this job. . . ." He told Maste that the correct apartment was 5I rather than 5E.

On this second...