People v. Malinsky

• Decision Date: 07 January 1965
• Citation: 255 N.Y.S.2d 850,15 N.Y.2d 86
• Parties: , 204 N.E.2d 188 The PEOPLE of the State of New York, Respondent, v. Morris MALINSKY, David Lustigman and Robert Felt, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 850

255 N.Y.S.2d 850

15 N.Y.2d 86, 204 N.E.2d 188

The PEOPLE of the State of New York, Respondent, v. Morris MALINSKY, David Lustigman and Robert Felt, Appellants.

Court of Appeals of New York.

Argued Oct. 15, 1964.

Decided Jan. 7, 1965.

Maurice Edelbaum, New York City, for appellants.

Frank D. O'Connor, Dist. Atty. (Benj. J. Jacobson, Long Island City, of counsel), for respondent.

FULD, Judge.

Sometime during the week end of January 6 and 7, 1962, a trailer of Whippet Motors, Inc., loaded with 1,298 cartons containing drugs and cosmetics belonging to First National Stores was stolen from Whippet's terminal in Boston, Massachusetts. The theft was reported to the police of that city, immediately following its discovery, on Sunday, January 7. Three days later, on January 10, police officers of the New York City police Department, acting pursuant to a search warrant, seized the stolen cartons as they were being removed by the defendants from certain premises variously called a warehouse, plant and storage building located in Jamaica, Queens County.

Following their indictment, and prior to trial, the defendants moved to suppress the evidence seized at the building on the ground that the officers had, without proper authorization, improperly executed the warrant in the nighttime (Code Crim.Proc. § 801). The judge who was later to preside upon the trial heard the motion and agreed with the defendants that such nighttime execution 'was not authorized by the warrant' (36 Misc.2d 204, 207, 232 N.Y.S.2d 843, 847). ¹ Noting, however, that the search and seizure could be 'upheld' without a warrant if the police had 'probable cause to arrest the defendants for the commission of a felony', he directed a further hearing before another judge 'solely for the purpose of determining whether the search and seizure were made as an incident to a lawful arrest' (36 Misc.2d, at pp. 206, 207, 232 N.Y.S.2d, at p. 845, 847).

Upon such hearing, there was evidence that the police had had the defendants under observation for some time; that they had 'tailed' two of them to the premises in Jamaica; that, on January 8, 1962, one of the officers, Detective Sullivan, was told by an unnamed informant whose tips, according to Sullivan, had 'proved correct' on other occasions that 'there was a stolen load of goods' in that building and that Malinsky and Lustigman were 'involved'; and that, on the day after receiving such information, the police returned to the premises and there saw the defendants and a large quantity of cartons.

It was on the next day, January 10, that Sullivan obtained the warrant which authorized a search of the building. He and three other officers thereupon proceeded to the premises and, around six o'clock, after observing the three defendants loading cartons onto a truck, showed their warrant, placed the defendants under arrest and seized the cartons. It was not until after the arrests had been effected that the officers learned that the cartons and the goods contained in them had, in fact, been stolen from Whippet's motor terminal in Boston. Moreover, since the informer had not described either the goods or how they were packed, and the cartons had no identifiable markings on them, the detective apparently had no way of knowing, prior to making the arrests, that the boxes in question contained the stolen mechandise of which the informer spoke or, indeed, any other.

It was the defendants' position upon the suppression hearing that Sullivan's informer was nonexistent and that the police had actually acquired their information from an illegal wire tap. In any event, desirous of refuting the detective's story, defense counsel sought to question him about his alleged informer and the latter's asserted reliability. The court, however, on objection by the district attorney, refused to allow the defense to elicit any facts as to the informer's identity, his background or the source of his knowledge. The judge also refused to permit the defendants to inspect and use, for the purpose of cross-examining him, certain notes which Sullivan acknowledged he had made 'in connection with (their) arrest' on January 10.

At the termination of the hearing, the judge, with nothing before him to cast doubt on the existence of the informer, on his reliability or on the information he purportedly conveyed, concluded that probable cause had been shown for the arrests and denied the motion to suppress, in consequence of which the challenged evidence was received against the defendants upon the ensuing trial. The court found them guilty of the crime of concealing and withholding stolen goods and the Appellate Division affirmed the resulting convictions. On this appeal, here by leave of the Chief Judge, the defendants urge that the judge presiding at the second hearing committed error when he ruled, first, that the prosecution was not required to disclose the identity of the police informer and, second, that the defendants were not entitled to inspect the notes made by Sullivan.

As to the latter contention, the court is of the opinion that Detective Sullivan's notes should have been turned over to the defendants for their inspection and possible use. We made it unmistakably clear in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 that defense counsel must be permitted to examine a witness' prior statement, whether or not it differs from his testimony on the stand, and to decide for themselves the use to be made of it on cross-examination, provided only that the statement 'relates to the subject matter of the witness' testimony and contains nothing that must be kept confidential' (p. 289, 213 N.Y.S.2d p. 450, 173 N.E.2d p. 883). And, obviously, it matters not whether the witness is testifying upon a trial or at a hearing. In either event, 'a right sense of justice' entitles the defense to ascertain what the witness said about the subject under consideration on an earlier occasion.

The notes made by Sullivan in this case unquestionably relate to the subject matter of his testimony and, since there is no claim that they contain anything which has to be kept confidential, the should have been, without more, turned over to the defense. In view of our decision in Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, supra, the judge presiding may not allow the People to keep from the defendants' counsel statements or notes made by a witness upon the ground that nothing in them could assist the defense or that no prejudice would result from withholding them.

There must, therefore, be a new hearing at which the defendants will be entitled to examine and use the notes made by Sullivan and the question arises, in connection with the defendants' other contention, whether they will also be entitled to disclosure of the police informer's identity. This is a more complicated and troublesome issue, requiring more extensive discussion.

A search, not authorized by consent or a search warrant, is deemed reasonable only if conducted as 'incident to a lawful arrest' (People v. Loria, 10 N.Y.2d 368, 373, 223 N.Y.S.2d 462, 466, 179 N.E.2d 478, 482; see, also, Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Rios v. United States, 364 U.S. 253, 261-262, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134), and to effect such an arrest the arresting officers must have 'reasonable cause for believing' that a crime has been committed and that the person arrested is the party responsible (Code Crim.Proc. § 177). ² As this court expressly recognized in People v. Coffey, 12 N.Y.2d 443, 452, 240 N.Y.S.2d 721, 726, 191 N.E.2d 263, 267, cert. den. 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612, such reasonable cause may be provided by the communications received from an informer, as long as the information related is substantiated 'either (by) the informer's own character and reputation or (by) the separate, objective checking of the tale he tells.' (See, also, Beck v. State of Ohio, 85 S.Ct. 223, supra.) In our judgment, the testimony of the police officers as to their observations, when taken together and in conjunction with the information which Sullivan declared he received from a reliable informer, establishes the requisite reasonable or probable cause. (Cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Marshall, 13 N.Y.2d 28, 33-35, 241 N.Y.S.2d 417, 420-422, 191 N.E.2d 798, 800-801; People v. Santiago, 13 N.Y.2d 326, 247 N.Y.S.2d 473, 196 N.E.2d 881; People v Gary, 14 N.Y.2d 730, 250 N.Y.S.2d 75, 199 N.E.2d 171, cert. den. 379 U.S. 937, 85 S.Ct. 340, 13 L.Ed.2d 347.) But this is not decisive of the question we are considering. The finding of probable cause necessarily rests upon acceptance of Sullivan's credibility, and the conclusion (from the present record) that there was such probable cause does not resolve the defendants' claim that they were denied a fair hearing because, by withholding the informer's identity, the State deprived them of the only available method of rebutting Sullivan's testimony testimony so essential, the defendants assert, that without it a finding that probable cause existed would not be justified.

The government's privilege of nondisclosure has for its purpose, the Supreme Court declared in Roviaro v. United States, 353 U.S. 53, 59, 61, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 'the furtherance and protection of the public interest in effective law enforcement' and it 'recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.' The importance of the privilege to successful criminal investigation is self-evident but this does not mean it may be successfully invoked in every case. Of necessity, its 'applicability' is limited by 'fundamental requirements of...