People v. Leonard

• Decision Date: 24 February 1970
• Parties: The PEOPLE of the State of New York, Respondent, v. Barry LEONARD, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 77

308 N.Y.S.2d 77

33 A.D.2d 1010

The PEOPLE of the State of New York, Respondent, v. Barry LEONARD, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 24, 1970.

D. B. Liberman, Asst. Dist. Atty., for respondent.

S. L. Fine, New York City, for defendant-appellant.

Before EAGER, J.P., and NUNEZ, McNALLY and MACKEN, JJ.

PER CURIAM.

Judgment entered June 20, 1968, convicting defendant, upon his plea of guilty, of criminal possession of a dangerous drug, affirmed.

The motion to suppress was based solely on the testimony of the arresting police officer given at the preliminary hearing before the magistrate and the hearsay affidavit of defendant's attorney. The latter had no evidentiary value. (People v. DeSimone, 56 Misc.2d 289, 288 N.Y.S.2d 324, affd. 59 Misc.2d 562, 299 N.Y.S.2d 488). The uncontradicted testimony of the police officer presented no issue of fact requiring a hearing. (People v. Rodney P. (Anonymous), 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255, 261.) In Rodney P. the admissions were made after questioning, without Miranda warnings, a sixteen year old boy who had previously been identified by an accomplice as a participant in a theft. The court said (pp. 10, 11, 286 N.Y.S.2d p. 233, 233 N.E.2d p. 261): 'The kind of questioning is little different from routine police investigation of crimes or suspicious conduct at a person's home, his place of business or on the street--the kind of questioning which has uniformly been held not to require the Miranda warnings.' In People v. Paulin, 25 N.Y.2d 445, 449, 306 N.Y.S. 929, 932, 255 N.E.2d 164, 166 (decided December 4, 1969), it was said: 'To be sure, the questioning of a defendant in her own home by police officers is not, without more, sufficient to conclude that the interrogation was custodial.' The defendant chose not to supply his version of the occurrence and there is no competent evidence in this record that the defendant was deprived of his freedom of action in any significant way or that there was an illegal search and seizure. In People v. Oramus, 25 N.Y.2d 825, 303 N.Y.S.2d 679, 250 N.E.2d 723, cited in the dissent, the defendant was questioned 'in the custodial atmosphere of the station house' to which he had been brought in a patrol car.

All concur except NUNEZ, J., who dissents in the following memorandum:

Several police officers, (the exact number does not appear in the record) having received 'information connecting the defendant personally with possession of marijuana' (Record A--23, testimony of Detective Rothengast) and 'information from the Narcotics Bureau, that they were holding marijuana parties in this apartment' (Record A--21, same witness) questioned this 20 year old defendant for 15 minutes before they were able to obtain the admissions sought. The youthful defendant was alone in his apartment. Detective Rothengast testified that, when asked if he had any marijuana, the defendant said 'yes', went into his bedroom and produced a small quantity of the illegal drug whereupon he was placed under arrest.

Although they had previous information indicating de...