People v. Daniels

• Decision Date: 11 February 1974
• Citation: 352 N.Y.S.2d 646,43 A.D.2d 959
• Parties: The PEOPLE, etc., Respondent, v. Ray DANIELS, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 646

352 N.Y.S.2d 646

43 A.D.2d 959

The PEOPLE, etc., Respondent, v.Ray DANIELS, et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Feb. 11, 1974.

Before LATHAM, CHRIST, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendants from three judgments of the Supreme Court, Kings County, one each as to defendants Daniels and Cooper rendered December 13, 1972, and one as to defendant Evans rendered December 14, 1972, convicting them of criminal possession of dangerous drugs in the third and fourth degrees and two counts of criminally using drug paraphernalia in the second degree, upon a jury verdict, and imposing sentence.

Three judgments affirmed.No opinion.

LATHAM, CHRIST and MUNDER, JJ., concur.

MARTUSCELLO, J., dissents and votes to reverse the judgments and order a new trial, with the following memorandum:

Appellants, as well as John Bryant and Donald James, were indicted and charged with criminal possession of a dangerous drug in the third and fourth degrees and two counts of criminally using drug paraphernalia in the second degree.Prior to trial James pleaded guilty and he became a witness for the People.

At the trial Police Sergeant Race testified that on October 22, 1971, at about 11:00 A.M., he positioned himself on the landing between the fourth and fifth floors of an apartment house located at 457 Schenectady Avenue, Brooklyn, New York.From that position he was able to see the door to apartment 3--D.At approximately 1:30 P.M. he saw Bryant leave the apartment.At about 2:15 P.M. he observed James exit from the elevator and knock on the door to the apartment.The door opened and James entered.At approximately 2:55 P.M. Race saw James and appellant Daniels leave the apartment.As soon as the men left, Race communicated with fellow officers by means of a walkie-talkie.A couple of minutes later, as he walked down the stairs, he saw Daniels and James between the third and fourth floors in the custody of other police officers.They then all proceeded upstairs to apartment 3--D.As they approached the apartment Bryant came out of the elevator and was taken into custody.

Upon entering the apartment, Race found on the kitchen table 1331 glassine envelopes containing a white powder, a clear plastic bag containing a white powder, a scale, three full boxes of scotch tape, a plastic bag containing jelly capsules, and a box of rubber bands.There was also a large quantity of empty glassine envelopes both on top and beneath the kitchen table.Some of these glassine envelopes were 'strewn about loose', some were in a box and some were in a paper bag.

Race further testified that while he was in the apartment he arrested the three appellants and Bryant and James.Appellant Evans was found in the bedroom in the rear of the apartment, undressed and under the covers in bed.

A police chemist testified that the envelopes found on the kitchen table in the apartment contained 4 3/8 ounces and 13 grains of powder.Heroin was found to be present in each envelope.

Donald James, who, as above-stated, had been indicted with the appellants and had pleaded guilty prior to the trial, admitted that...