People v. Galleges

• Decision Date: 06 January 1975
• Citation: 362 N.Y.S.2d 1000,80 Misc.2d 265
• Parties: PEOPLE of the State of New York, Plaintiff, v. Gladys Lamars GALLEGES, Defendant.
• Court: New York Supreme Court

Page 1000

362 N.Y.S.2d 1000

80 Misc.2d 265

PEOPLE of the State of New York, Plaintiff, v. Gladys Lamars GALLEGES, Defendant.

Supreme Court, Criminal Term, Kings County, Part 34.

Jan. 6, 1975.

[80 Misc.2d 266] Eugene Gold, Dist. Atty., Kings County, Brooklyn by Patrick Leis, Bayside, of counsel, for plaintiff.

William Gallagher, Legal Aid Society, Brooklyn by Arnold Rosen, Brooklyn, of counsel, for defendant.

MEMORANDUM

M. MICHAEL POTOKER, Judge.

By this motion the defendant seeks an order vacating and setting aside a search warrant issued on August 11, 1971, and suppressing the evidence seized pursuant to that warrant. The evidence seized consists of narcotics and instruments to process same.

The challenged search warrant directs a 'search of the 3rd floor, at 427 Willoughby Avenue, Brooklyn, occupied by J. D. Lopez, male white, Pr 40 years, 66 in., 120 lbs., black hair and J.D. Glads, female white, Pr 65 in., 21 years, 120 lbs. and their person and of any other person who may be found to have such property in his possession or under his control or to whom such property may have been delivered, for narcotics and cocaine and heroin and also paraphernalia used in the cutting and packaging of narcotics.'

In support of his application for the issuance of warrant, Police Officer Pinder stated under oath that he had been furnished information by a confidential informant known to him and registered in the Narcotics Division of the New York City Police Department. The informant had proved reliable to him in the past in that his cooperation had led to the arrest of twenty-five persons for violations of the narcotics laws, seven of whom were made by affiant, and that at least one of said persons arrested was subsequently convicted as of August 11, 1971 and that dispositions were then pending as to the others arrested. His informant told him that he was present on several occasions in the apartment located on the third floor of the premises which is occupied by a male named Lopez and a female named Glads. He described the persons as to age, color, height and weight. That on those occasions when he visited the apartment, he observed the described persons cutting and otherwise processing for sale heroin and cocaine and selling their products to persons who came to the apartment. Armed with this information, affiant made his own observations on six days preceding the execution of the warrant and at which times he saw persons knock on the door of the apartment, ask for Lopez or Glads, door was opened, money passed through the door and small packets, mostly glassine, would be passed out. The officer also requested that the warrant be endorsed for nighttime service and that it be executed without prior announcement of purpose because of the danger of injury and the easily disposable nature of the contraband.

On August 12, 1971, the day after the warrant was issued, it was executed against the specified premises. The items seized were found by the police officer under a bed in the bedroom which he claims was occupied by defendant and in her presence. Nothing was seized from defendant's person.

Detective Pinder testified that the information supplied to him in the past by this informer resulted in the arrest of other. The detective was familiar with those arrested as a result of tips supplied by the informer because he was on the narcotics detail in the area for two years. He saw those defendants arrested in the precinct and one was convicted as of the time of the arrest of this defendant in August 1971.

He also testified to his own observations on six occasions during one week preceding and including the time and date of arrest of defendant, while secreted in different areas of the premises in question (stairway leading to third floor, a bathroom located in the hallway of the floor, and a ladder to the roof), and from which he was able to observe persons engaged in conversation and in the making of purchases of narcotics from occupants of said apartment, including this defendant.

On date of arrest Detective Pinder and his fellow officer, stationing themselves on or near the third floor, observed persons holding conversations with, and handing over money to, persons in the apartment and in return receiving little packets, mostly glassine envelopes. The door of the apartment was opened on each occasion about three inches, and from his vantage point Detective Pinder claims to have been able to make his observations and hear the conversations.

When the arresting officers entered the apartment, they found the defendant and one other person there, whereupon both then ran in different directions of the apartment. The officer described the apartment in detail and that it was the only one on the third floor; a bathroom with a separate entrance was located in the hallway; a kitchen door facing the hallway was closed, blocked by a refrigerator placed against said door; other rooms included a combination living room and bedroom, and a bedroom. There were no doors in the apartment between the rooms except for a plywood divider on the doorway of the combination living room-bedroom. The patrolman relied upon his informer that the apartment was occupied by defendant and one Lopez, who was not present on the date of the arrest; that the informer also gave him a description of the people in the apartment.

Whenever he visited the premises, he found that only one apartment was occupied in the building, that being the one on the third floor; the first floor was vacant and its windows were broken; he never saw anybody on the second floor; and believed it to have been an abandoned building.

Defendant's sister testified that at the time in question she and her family occupied an apartment on the second floor; that the defendant occupied one bedroom on the third floor; that one other male person resided on the first floor and two other males on the same floor as her sister. She stated that defendant used the kitchen entrance to reach her bedroom; that the bathroom was located in the kitchen and not outside in the hallway; she does not recall where the refrigerator was located, although she visited with her sister almost every day.

Detective McElligott corroborated Detective Pinder's testimony as to the observations made preceding entry into the apartment and that as they entered the apartment, he observed defendant running into the kitchen, while the other person ran into another room; and that the other person arrested did not occupy the bedroom in which the contraband was found.

He acknowledges that he failed to file the inventory sheet and the return of the warrant with the court required by law and standard police procedure. He attributes this failure to the fact that three or four days after the arrest he was transferred to another command in Manhattan and he was soon thereafter stricken with illness which kept him away from his police duties for about three months. Detective Pinder, under the impression that the warrant was returned by Detective McElligott, also neglected to file it.

Detectice McElligott did voucher the seized property with the property clerk of the Police Department and submitted it to the lab for analysis.

The court accepts testimony given by the two law enforcement officers as credible.

Defendant's motion to controvert and suppress is based upon the following:

1. Perjurious testimony of police officers.

The court, on reviewing the entire record, finds their testimony believable.

2. There was no probable cause for the issuance of a search warrant.

The court finds that such probable cause did exist based on the detailed information given by the informant and the reliability of his information is established by the affiant's statement that the informant was known to him and has in the past furnished information leading to arrests, and at least one conviction as of the time the warrant was issued (see e.g. People v. Rogers, 15 N.Y.2d 422, 424, 260 N.Y.S.2d 433, 434, 208 N.E.2d 168, 169).

The reliability of his information was further corroborated by the observations of the affiant which took place on six consecutive days immediately preceding the application for the warrant and the affiant observed the traffic on the third floor and the handing over of the small packets, and overheard the conversations between the alleged purchasers and sellers.

The contents of this affidavit fully meet any test...