People v. Garafolo

• Decision Date: 25 March 1974
• Citation: 353 N.Y.S.2d 500,44 A.D.2d 86
• Parties: The PEOPLE, etc., Respondent, v. Gaspare GARAFOLO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 500

353 N.Y.S.2d 500

44 A.D.2d 86

The PEOPLE, etc., Respondent, v. Gaspare GARAFOLO, Appellant.

Supreme Court, Appellate Division, Second Department.

March 25, 1974.

Gerald L. Shargel, New York City (James M. La Rossa, New York City, of counsel), for appellant.

Michael Armstrong, Dist. Atty., Queens County (Cornelius O'Brien, Asst. Dist. Atty., of counsel), for respondent.

Before GULOTTA, P.J., and LATHAM, SHAPIRO, CHRIST and BENJAMIN, JJ.

PER CURIAM.

Following the denial of a motion to suppress evidence allegedly obtained as the result of an unlawful search and seizure, the defendant pleaded guilty to possession of a quantity of untaxed cigarettes as a felony and to possession of a weapon as a misdemeanor. He received a six-month jail sentence on the felony and was fined $1,000 on the gun charge. The appeal is from the judgment of conviction.

Two questions are brought up for review by this appeal: (1) whether there was sufficient credible evidence to establish reasonable cause for the defendant's initial arrest and (2) whether the subsequent search of his garage violated his Fourth Amendment rights.

The testimony at the suppression hearing disclosed that one Paul Murphy, an investigator for the State Special Investigation Bureau, had received some prior hearsay information about the defendant. On June 13, 1972 he had the defendant's house under observation. He saw him emerge at 3:30 P.M. and drive away. Murphy followed him and saw him stop at a private garage, open the door with a key and back into it. The defendant opened the trunk of his car and Murphy observed 100 to 200 cartons of cigarettes in the rear of the garage, in addition to a number of closed cardboard cartons. At that time it is undisputed that he did not know whether these cigarettes were untaxed. The defendant emerged from the garage carrying a brown paper bag Under his arm, closed the door and went to a nearby house. When there was no response to his knock he started to return to the garage. On the way he encountered Murphy who, claiming that he could see into the brown paper bag which the defendant had obligingly left open at the top, discerned that one of the cartons had a loose flap and that a cigarette pack Inside the carton had a North Carolina decal on the Bottom of it. He thereupon placed the defendant under arrest. He took the defendant back to the garage and someone opened the overhead solid metal door. He was unsure as to who actually did so. He claimed that as he edged past the garaged car he saw a revolver butt protruding from a bag under the driver's seat and promptly retrieved it. The search of the garage revealed 1,435 cartons of untaxed cigarettes (i.e., they had no New York State tax stamp affixed). Two hundred of these cartons were found in the trunk of the car.

It was conceded that the defendant, who cannot speak English, did not consent to the search of his garage.

The defendant told a different story of the events preceding the arrest. He testified, through an interpreter, that the bag was crumpled and closed at the top, that it was grabbed from his hands by Murphy as he, the defendant, was ringing the doorbell and that the keys for the garage were taken from him and the garage door opened by Murphy.

We need not waste much time on the defendant's further explanation of how he allegedly innocently came into possession of the untaxed cigarettes. That tale was almost as tall as Murphy's, but that is not the issue. The issue here is not whether the defendant is guilty, but whether he was the victim of an unlawful arrest followed by an unlawful search and seizure.

The validity of an arrest depends upon existence of probable cause at the time of the arrest and cannot be based on evidence obtained as the result of an ensuing search (People v. McCarthy, 14 N.Y.2d 206, 250 N.Y.S.2d 290, 199 N.E.2d 382; People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478).

It is well settled, of course, that issues of credibility are primarily for the trial court and its determination is entitled to great weight (People v. Atlas, 183 App.Div. 595, 600, 170 N.Y.S.2d 834, 837, affd. 230 N.Y. 629, 130 N.E. 921). However, reversal is warranted where the fact findings of the trial court are manifestly erroneous or so plainly unjustified by the evidence that the interests of justice necessitate their nullification (5A C.J.S. Appeal and Error § 1656(3)). We refuse to credit testimony which has all appearances of having been patently tailored to nullify constitutional objections. In evaluating testimony we should not discard common sense and common knowledge. This concept is well stated in section 649 of 22 N.J. Jurisprudence, Evidence, as follows:

'The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case.'

(See, also, to the same effect, People v. Galbo, 218 N.Y. 283, 112 N.E. 1041, 2 A.L.R. 1220; 32 A C.J.S. Evidence § 1031(3).) Obviously, Murphy could not have observed from the public sidewalk the lack of a tax stamp on individual packs of cigarettes contained in cartons and encased in unopened boxes in the back of an unlighted garage. It is only slightly less unbelievable that he made a similar observation through a convenient tear in a carton in an open bag as he passed the defendant on the street some two to four feet from him. The bag, incidentally, was a large one, of the supermarket kind, 24 inches tall by 12 inches wide, and contained only four or five cartons of cigarettes lying Horizontally in the bag, so stamps on individual...