People v. Grande

Decision Date22 February 1977
Citation56 A.D.2d 636,391 N.Y.S.2d 840
PartiesThe PEOPLE, etc., Respondent, v. Frank GRANDE, Appellant.
CourtNew York Supreme Court — Appellate Division

Bernard H. Udell, Brooklyn, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Julian L. Kalkstein Brooklyn, of counsel), for respondent.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 24, 1976, convicting him of unlawful possession of untaxed cigarettes as a felony, upon his plea of guilty, and imposing sentence. Judgment affirmed. No opinion.

LATHAM, Acting P.J., and MARGETT and SUOZZI, JJ., concur.

MOLLEN, J., dissents and votes to reverse the judgment, grant the motion to suppress physical evidence, and dismiss the indictment, with the following memorandum:

I am of the opinion that there was probable cause for the warrantless search of the defendant's garage and that any property seized as a result thereof should have been suppressed. It is clear that, while a person who claims to be aggrieved by an illegal search and seizure has the burden of proof, nevertheless, as was stated by our Court of Appeals in People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709: 'The People must, of course, always show that police conduct was reasonable * * * the People are nevertheless put to 'the burden of Going forward to show the legality of the police conduct in the first instance'.' (Emphasis in original.) In the instant case the People have failed to meet that burden. The People's case consisted of the testimony of two investigators from the New York State Department of Taxation and Finance, who testified, in substance, as follows: On June 27, 1974, at approximately 8 A.M., the two investigators, accompanied by their supervisor, arrived at the defendant's residence with a warrant for his arrest, which they had in connection with an unrelated Queens County matter. The investigators remained in their car until approximately 9:30 A.M., when they saw the defendant come out of his home, walk down the front steps and walk approximately four feet to his garage door. When the defendant arrived at the garage door he knocked on it and it was opened by a female, who was later learned to be the defendant's wife. At that time, as the defendant was standing in front of the garage door, the investigators left their car and proceeded toward the defendant, who had his back to them. As they approached the defendant they identified themselves and told the defendant that he was under arrest. At that time the investigators were standing in the driveway. They testified that from that position they observed wrapped half cases, cartons wrapped in brown paper bags, and the ends of some exposed cartons of cigarettes which contained the names of the manufacturers. During the course of one of the investigators' testimony, he conceded that he could not see that the packages of cigarettes did not have tax stamps on them and that the only way in which he could determine whether a tax stamp was contained on an individual package of cigarettes was by opening the cartons. Nor did the other investigator testify that he could see that the packages of cigarettes did not have the required tax stamps. The investigators then entered the garage, opened the cartons and examined the packages of cigarettes, which were found to contain tax stamps from the State of North Carolina. None of the packages of cigarettes contained the necessary New York State or New York City tax stamps. At that point the defendant and his wife were placed under arrest for unlawful possession, transportation for the purpose of sale of unstamped and unlawfully stamped packages of cigarettes, as a felony. An arrest cannot be justified by what a search reveals; it must be valid at its inception, and evidence which is seized pursuant to an arrest without probable cause must be suppressed (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). In the instant case the investigators were not acting pursuant to any information supplied by a reliable informant, nor did the defendant have any prior arrest for a crime involving untaxed cigarettes. Furthermore, there had been no prior surveillance of the defendant or his residence. Nor had there been any observation by the investigators of any vehicle which had previously been used in connection with a crime involving untaxed cigarettes (cf. People v. Farenga, 52 A.D.2d 587, 383 N.Y.S.2d 542; People v. Pepitone, 48 A.D.2d 135, 368 N.Y.S.2d 181, affd., 39 N.Y.2d 907, 386 N.Y.S.2d 401, 352 N.E.2d 588). Thus, the sole question presented for our determination is whether the investigators' observation of large wrapped cartons, some smaller wrapped packages and the...

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2 cases
  • People v. Feingold
    • United States
    • New York Supreme Court — Appellate Division
    • December 24, 1984
    ...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; People v. Grande, 56 A.D.2d 636, 391 N.Y.S.2d 840, affd. 45 N.Y.2d 717, 408 N.Y.S.2d 469, 380 N.E.2d 295). Thus, the discovery of marijuana in the trunk of the car an hour afte......
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    • New York Supreme Court — Appellate Division
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