People v. Hester

• Decision Date: 06 August 1981
• Citation: 83 A.D.2d 799,442 N.Y.S.2d 1
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald HESTER, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Buster McRAY a/k/a Buster McCray, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1

442 N.Y.S.2d 1

83 A.D.2d 799

The PEOPLE of the State of New York, Respondent, v. Ronald HESTER, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Buster McRAY a/k/a Buster McCray, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Aug. 6, 1981.

S. Corkery, for respondent.

E. T. Stogel, New York City, for Hester.

H. W. Muchnick, New York City, for McRay.

Before BIRNS, J. P., and SULLIVAN, MARKEWICH, LUPIANO and FEIN, JJ.

MEMORANDUM DECISION.

On remand from the Court of Appeals "for further proceedings in accordance with the opinion herein" (People v. McRay, Charles J., and Hester, 51 N.Y.2d 594, 607, 435 N.Y.S.2d 679, 416 N.E.2d 1015), dispositions are made as follows:

People v. Hester, 71 A.D.2d 121, 421 N.Y.S.2d 569: Judgment, Supreme Court, New York County, rendered March 9, 1978, affirmed, and the matter remanded to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

People v. McRay, 74 A.D.2d 522, 425 N.Y.S.2d 258: Judgment of conviction, Supreme Court, New York County (Davis, J.), rendered June 2, 1978, affirmed, and the matter remanded to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

In our earlier reversal of the conviction in Hester for lack of probable cause, we relied on People v. Oden, 36 N.Y.2d 382, 385-6, 368 N.Y.S.2d 508, 329 N.E.2d 188; People v. Corrado, 22 N.Y.2d 308, 312-13, 292 N.Y.S.2d 648, 239 N.E.2d 526, and People v. Brown, 24 N.Y.2d 421, 301 N.Y.S.2d 18, 248 N.E.2d 867, all involving the passing of envelopes in high crime areas with overtones of narcotic activity, to find the disclosed factual pattern less than sufficient to reach a threshold at which probable cause to arrest might be apparent. Now our highest court has found such a set of facts to be sufficient to achieve that level. Indeed, this trilogy of cases had set such an apparently inflexible standard of what is probable cause is an envelope passing case that an imprimatur was placed on at least two of the three: "We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause ... (People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188; ... People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526)." People v. DeBour, 40 N.Y.2d 210, 216, 386 N.Y.S.2d 375, 352 N.E.2d 562.

It is fair to say that, had it not been for Oden, Brown, and Corrado, and their progeny here, People v. Maldonado, 59 A.D.2d 692, 398 N.Y.S.2d 682; People v. Goss, 67 A.D.2d 876, 413 N.Y.S.2d 684; People v. Thomas, 62 A.D.2d 945, 404 N.Y.S.2d 11, we might easily have sustained probable cause in the subject cases by considering a factor never before permitted weight, i. e., the nature of the neighborhood in which the police observations were made. (51 N.Y.2d at 605, 435 N.Y.S.2d 679, 416 N.E.2d 1013) See...