People v. Quinones

• Decision Date: 21 February 1978
• Citation: 402 N.Y.S.2d 196,61 A.D.2d 765
• Parties: The PEOPLE of the State of New York, Respondent, v. Rafael QUINONES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 196

402 N.Y.S.2d 196

61 A.D.2d 765

The PEOPLE of the State of New York, Respondent, v. Rafael QUINONES, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 21, 1978.

A. D. Marrus, New York City, for respondent.

P. L. Weinstein, New York City, for defendant-appellant.

Before KUPFERMAN, J. P., and BIRNS, SILVERMAN, EVANS and FEIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County, rendered June 10, 1976, convicting defendant on his plea of guilty to the crime of attempted possession of a controlled substance in the fifth degree, unanimously reversed, on the law, motion to suppress granted, plea vacated, and the indictment dismissed.

The People's case at the hearing consisted solely of one witness, Police Officer Smith, who testified as follows: At about 7:45 P.M., on January 9, 1975, while he was on duty in uniform in a patrol car with a fellow officer, he "received a radio run from central stating there were men with shotguns in the lobby of 1059 Boyton." The officers parked their vehicle near the premises and proceeded on foot. As they approached the building, Officer Smith saw defendant walking towards him from the vestibule and "throw something (a small cellophane bag later determined to contain narcotics) from his left hand to one side." He retrieved the bag and asked defendant about it. Defendant denied the bag belonged to him or that he had thrown it away. As Officer Smith was picking up the bag, other officers responding to the call arrived. To his best recollection, neither he, his partner nor any of the other officers had their guns drawn. After Officer Smith recovered the bag, he arrested defendant. No witness was called by defendant in his own behalf.

(T)hough a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to 'the burden of going forward to show the legality of the police conduct in the first instance (People v. Malinsky, 15 N.Y.2d 86, 91, n. 2, 262 N.Y.S.2d 65, 209 N.E.2d 694)' (People v. Whitehurst, 25 N.Y.2d 389, 391, 304 N.Y.S.2d 5 (emphasis in original)). These considerations require that the People show that the search was made pursuant to a valid warrant, consent, incident to a lawful arrest or, in cases such as those here, that no search at all occurred because the evidence was dropped by the defendant in the presence of the police officer. (People v. Berrios, 28 N.Y.2d 361, 367-368, 321 N.Y.S.2d 884, 889, 270 N.E.2d 709, 713.)

Implicit in this concept is that the testimony offered by the People in first presenting their case must be credible (People v. Berrios, supra, p. 368, 321 N.Y.S. 884, 270 N.E.2d 709).

Although the issue of credibility is ordinarily for the trier of facts, the rule must give way where the testimony on appeal is viewed as incredible as a matter of law. First, it appears that the officer did not testify truthfully when he said he came to the scene in response to a radio communication. No tape of the communication could be located. Indeed, the District Attorney conceded there was "no...