People v. Isaacson

• Decision Date: 09 May 1978
• Parties: , 378 N.E.2d 78 The PEOPLE of the State of New York, Respondent, v. Edward D. ISAACSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 714

406 N.Y.S.2d 714

44 N.Y.2d 511, 378 N.E.2d 78

The PEOPLE of the State of New York, Respondent, v. Edward D. ISAACSON, Appellant.

Court of Appeals of New York.

May 9, 1978.

Peter C. Bradstreet, Bath, for appellant

John M. Finnerty, Dist. Atty., for respondent.

OPINION OF THE COURT

COOKE, Judge.

We reverse and dismiss the indictment against defendant; we so hold for the fundamental reason that due process compels it.

This case concerns fortunately rare, and inexplicable, police misconduct. Involved is reprehensible police action, ^* including violence and deception, culminating in the further deceitful luring of a Pennsylvania resident into New York solely to make a sale of cocaine, for which he was convicted and sentenced to 15 years to life at Attica. At the time of trial, defendant was in his mid-twenties and was a graduate student and teacher at Penn State University, on the brink of receiving his doctoral degree in plant physiology and biochemistry. He resided at State College, Pennsylvania. Although he admitted to having used three controlled substances on very few occasions, he had no prior criminal record.

The events leading to defendant's conviction trace back to December 5, 1974 when J. D. Breniman, a young man with an unsavory drug history, was arrested by the New York State Police in Steuben County for possession of a controlled substance in the second degree, a class A-2 felony punishable by a 15-year to life term. At the time of his apprehension, Breniman was on bail pending an appeal from a 1973 conviction, based on a guilty plea for possession of a dangerous drug in the fourth degree, for which he had been sentenced to an indeterminate term of zero to three years at the New York Correctional Facility at Attica.

Breniman, who at defendant's trial admitted to being an inveterate user of drugs, including amphetamines, sedatives, hallucinogens, marihuana and heroin, and a seller for profit to maintain his habit, was interviewed after his arrest on December 5, 1974 at the New York State Police substation at Painted Post. As found as a matter of fact by the trial court, during this questioning, an investigator of the New York State Police struck Breniman with such force as to knock him out of a chair, then kicked him, resulting in a cutting of his mouth and forehead, and shortly thereafter threatened to shoot him. Breniman testified that this abuse was administered because he refused to answer a question, that when struck his glasses flew off, that he was kicked in the ribs when down, that a chair was thrown at him, that he was also threatened with being hurled down a flight of steps, and that one of two uniformed State troopers who witnessed these events said, "I (Breniman) may as well forget about it. They would swear that I fell coming in the substation on the steps."

Following his seizure on December 5, 1974, Breniman was held without bail at the Steuben County Jail until December 24, when he was released. By December 23, one of the officers involved in his case had received a lab report showing that the capsules found on Breniman, which were the basis for his class A-2 felony charge and which had been purchased from defendant, were not controlled substances at all. Rather than being amphetamines of a type referred to on the street as "Black Beauties", they were in fact nothing more pernicious than caffeine. However, Breniman was not told of this until some time later, at the trial of this matter after he had been used by the police as an informant in this case.

Upon the advice of his attorney, and while suffering under the contrived delusion that he was still facing a long prison incarceration if found guilty of the A-2 felony on top of his previous conviction, Breniman agreed to assist the State Police as an informant. Although not specifically promised that his aid to the police would result in a lesser sentence, his attorney advised that this would provide him with a bargaining position with respect to the charges against him. The violence and threats of the investigator were not the reason for his co-operation, so he stated. Nevertheless, the trial court found that Breniman testified he would not have aided the police were it not for the fact that they deceived him by not revealing that the charges relating to the December 5 arrest would not stand up in court.

Breniman began his informant activities by telephoning various persons indiscriminately for the purpose of setting up drug sales in which the police would arrest the sellers. He made "collect" calls and one of the individuals contacted was defendant, whom he had known for two years through a mutual friend at State College. Defendant's version of the conversations is that Breniman cried and sobbed on the phone, relating that he was facing 15 years to life in Attica, that his parents had effectively cast him from the family home, that he was running out of friends, and that he was looking for ways to make money to hire a decent lawyer. Breniman's recollection was that he had not made the remarks in the manner described by defendant, but he otherwise corroborated defendant's version. He admitted telling defendant that he was in trouble, that the police had beaten him, that he feared going to Attica, and that he needed a "score" or "deal" so that he could hire an attorney and "make" bail.

Between December 24, 1974 and January 4, 1975, Breniman made seven phone calls to defendant before finally arranging a sale. Initially, he sought to buy heroin, but defendant flatly refused. As to cocaine, defendant tried to put him off by saying that there was nothing worthwhile, but Breniman persisted in his efforts to get defendant to make a sale.

At the time of Breniman's calls, defendant was living in an apartment in State College with Denise Marcon, a legal secretary, who admitted that she was a daily user of drugs including marihuana, cocaine, LSD, amphetamines and depressants. She testified that in October and November of 1974 defendant had sold one-gram quantities of cocaine which he kept at the apartment, and this was confirmed by Breniman who alleged that he made two purchases of small amounts of cocaine from defendant during these months. Although Marcon had not herself spoken to Breniman about a sale, defendant discussed with her at length Breniman's request.

Defendant's studies and his teaching responsibilities required him to work 12 to 14 hours a day. He did not have access to someone who could supply him with the cocaine the two ounces worth $3,800 which Breniman was seeking but Denise Marcon did. She called a girl friend who gave her a number at which to contact a man known as "Zorch". Although Marcon testified that defendant indicated that a sale of this magnitude to Breniman was worth $1,000 to them, she also confirmed that a desire to help Breniman was defendant's motivation for entering into the transaction.

The sale was scheduled for January 4, 1975. The State Police claimed no knowledge of Breniman's prior negotiations, but had spoken to Breniman concerning the sale in general. The investigator, who had previously struck Breniman, detailed the specifications to his victim-turned-informant. Breniman said he might be able to get an ounce of cocaine, but the investigator told him to get two because it was his experience that one never gets exactly what is asked for and he wanted a sale of at least one ounce to obtain a conviction for a higher grade of crime. Defendant feared New York's drug laws and did not want to enter the State, but the investigator instructed Breniman that the transaction must take place in New York where he had authority to make an arrest.

To cause defendant to sell drugs in this State, Breniman cleverly kept changing the destination, progressively northward, culminating in an arrangement by which defendant would make a three- or four-hour trip to meet at a place near the Pennsylvania-New York border, at a spot where it would be difficult for defendant to ascertain his location. Initially, defendant agreed to meet in Williamsport, Pennsylvania, one and a half hours distant from State College. Breniman then succeeded in inducing defendant to commit himself to journey to Mansfield, a point near Williamsport and also in the Quaker State. Finally, he acceded to drive another 15 miles north from Mansfield to Lawrenceville, Pennsylvania, which is just south of the State boundary.

The meeting place finally settled upon was the Whiffle Tree Bar, which Breniman told defendant was in Lawrenceville. What Breniman did know, and defendant did not, was that the bar was actually in the Town of Lindley, Steuben County, New York. Traveling north on Route 15 in Pennsylvania toward Lawrenceville, the only clear indication a motorist might have that he is leaving Pennsylvania is a sign adjacent to the southerly approach of a bridge spanning the Cowanesque River and welcoming the traveler to New York State. Actually, the State line is several hundred yards southerly of the bridge and is designated by a stone marker, which at the time of defendant's visit had crumbled and was obscured in the vegetation alongside the road. The Whiffle Tree Bar is situate between the hidden stone marker and the bridge sign and thus is located in the Town of Lindley in New York State, rather than in Lawrenceville, Pennsylvania, as defendant had been led to believe. Although Breniman devised the scheme for bringing defendant into this State, it was the State Police investigator who independently determined that the proposed location was within his jurisdiction.

Defendant engaged in a rather elaborate method of delivering the cocaine, including an arrangement to have Denise Marcon drive along in a separate vehicle conveying the contraband and the toting beneath his shirt of a plastic bag containing a nonnarcotic substance with a cocaine appearance to be turned over in the event of a "rip-off". He testified these precautions...