People v. Kemp
| Citation | 399 N.Y.S.2d 879,59 A.D.2d 414 |
| Parties | PEOPLE of the State of New York, Respondent, v. Jonathan KEMP, Defendant-Appellant. |
| Decision Date | 06 December 1977 |
| Court | New York Supreme Court Appellate Division |
Robert Koppelman, New York City, for defendant-appellant.
Steven J. Greenblatt, Brooklyn, of counsel (Billie Manning, New York City, with him on the brief; Mario Merola, Dist. Atty.), for respondent.
Before KUPFERMAN, J. P., and LUPIANO, SILVERMAN and LYNCH, JJ.
Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.
He was charged in a four count indictment with criminal possession of a controlled substance in the third degree (possession of cocaine with intent to sell), criminal possession of a controlled substance in the fifth degree (one-eighth ounce and more of cocaine), criminal possession of a controlled substance in the fifth degree (one ounce and more of marijuana) and possession of gambling records in the first degree. On April 5, 1976, a combined hearing was held (Bell, J.) on defendant's motion to suppress certain tangible property, to wit, two packets of cocaine, a quantity of marijuana, drug paraphernalia and gambling records, and to suppress statements made by defendant. Testimony at the hearing disclosed the following: On May 11, 1975, at about 10:30 p. m., patrolman Ward and his partner, on patrol, received a radio communication of a "family fight" and responded to 990 Anderson Avenue in the Bronx. In front of the building the officers met a woman who identified herself as Thelma Kemp. She informed the police that she had had an argument with her husband and that she wished to remove a stereo and some other personal belongings from the apartment. After she produced a marriage license, the police accompanied her to apartment 2C. It was stipulated at the hearing that at this time Thelma Kemp was the lawful wife of defendant. In the elevator en route to the apartment, she told the police that her husband had cocaine in the apartment and she would show them where it was. Mrs. Kemp used her key to unlock the door to the apartment and told her husband, who came to the door, that she wanted her stereo. Defendant disengaged a chain from the inside, and Mrs. Kemp with the police entered the premises. Mrs. Kemp then went to the bedroom, followed by the police and the defendant, where there was an unidentified woman sitting on the bed. Mrs. Kemp took the cover off a cookie tin which was on a night table which contained drug-cutting paraphernalia and threw it to the floor, thus disclosing its contents. She then removed a paper bag from the closet and revealed its contents, a plastic bag containing marijuana. Defendant was placed under arrest and advised of his rights. Officer Ward informed defendant that a search would be conducted and if he had the cocaine, he might as well give it up now. Defendant reached into a pocket of the robe he was wearing and handed over to the police a tinfoil packet of cocaine. After Mrs. Kemp informed the officers that defendant had more drugs and the officer repeated his admonition to defendant to cooperate, defendant went to the closet in the same room and obtained therefrom another tinfoil packet of cocaine which he turned over to the police. Subsequently, a search of the night table drawer by the police produced gambling slips.
At the precinct, defendant stated that both the cocaine and marijuana belonged to him and that he intended to resell the cocaine, but to retain the marijuana for his own use.
The court, relying on People v. Scull, 37 N.Y.2d 833, 378 N.Y.S.2d 30, 340 N.E.2d 466 (1975) suppressed the drug equipment and the marijuana, reasoning that the wife's knowledge of them was based on confidential communication which is privileged under CPLR 4502(b). 1 Opining that the People would require the wife's testimony to prove that defendant illegally possessed the drug paraphernalia and marijuana, the court concluded that the bar to such testimony by the marital privilege mandated suppression. However, the court refused to bar the remaining tangible property, to wit, the cocaine and the records of policy plays and the incriminating statements made by defendant on the basis that the arrest of defendant was legal. It is noted that no appeal was taken by the People from that part of the hearing court's determination which suppressed the marijuana and drug equipment.
In light of defendant's subsequent plea of guilty to the count of the indictment alleging criminal possession of a controlled substance in the fifth degree, which count related to the cocaine which was not suppressed, we are concerned with the propriety of the obtaining of the cocaine by the police. Defendant argues, inter alia, that the suppression of the drug equipment and marijuana removes the basis establishing probable cause for defendant's arrest and thus renders the cocaine, subsequently relinquished by defendant, suppressible as the fruit of an illegal arrest.
At the outset we agree with the hearing court's conclusion that the police legally entered the apartment. Mrs. Kemp's possession of the key to the apartment, the lack of opposition to her entry and her knowledge of the premises and the location of the contraband clearly evidence her residence in the apartment. Indeed, at the hearing it was not urged that she did not live with the defendant. Patently, she had the authority to consent to a warrantless search. As noted in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242: ". . . when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected."
As noted above, suppression of the drug paraphernalia and marijuana was based on the hearing court's application of People v. Scull, supra. Analysis of that case discloses that its rationale did not warrant suppression under the circumstances herein. In People v. Scull the defendant was convicted upon a verdict of criminal possession of a dangerous drug in the third degree, criminal possession of a dangerous drug in the sixth degree and possession of a weapon as a misdemeanor. At trial there was evidence that the defendant's wife made a telephone call summoning the police to the apartment occupied by the defendant and his wife. She exhibited a container of marijuana and a sawed-off shotgun which she told police belonged to the defendant. The defendant returned while the police were present and was arrested. A search of the defendant's person disclosed a vial containing LSD. The wife's testimony at trial was to the effect that she summoned the police because of threats made by defendant, that she consented to the warrantless search of the apartment and that the marijuana and shotgun belonged to the defendant. Observing that "(t) he marital privilege did not preclude the police from acting, as indeed it was their duty to act, on the wife's information and the house search consented to by her" (Emphasis supplied), the Court of Appeals stated: "(o)n the basis of the disclosures by the wife and the house search the police had probable cause to arrest defendant resting on a reasonable belief that he had committed a misdemeanor, namely, illegal possession of the contraband sawed-off shotgun (Penal Law, § 265.05, subd. 3)" (Emphasis supplied) (People v. Scull, supra at p. 834, 378 N.Y.S.2d at p. 30, 340 N.E.2d at p. 466). Recognizing that the wife's disclosures were exceptions to the privilege concerning confidential communications between spouses (see, CPLR 4502(b)), it was noted by the Court of Appeals that the privilege is "a testimonial privilege and not a universal 'gag' rule." Clearly, the tangible property, to wit, the shotgun, the marijuana and the LSD were not suppressed prior to trial and the introduction of this evidence at trial, together with the testimony elicited...
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