People v. Reynolds

• Decision Date: 23 October 1986
• Citation: 507 N.Y.S.2d 295,124 A.D.2d 356
• Parties: The PEOPLE of the State of New York, Respondent, v. Katherine REYNOLDS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 295

507 N.Y.S.2d 295

124 A.D.2d 356

The PEOPLE of the State of New York, Respondent, v. Katherine REYNOLDS, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 23, 1986.

Noel Tepper, Poughkeepsie, for appellant.

Eugene Keeler, Dist. Atty. (Mary Dawn Herkenham, of counsel), Hudson, for respondent.

Before MAIN, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.

MAIN, Justice Presiding.

Appeal from a judgment of the County Court of Columbia County (Leaman, J.), rendered June 6, 1985, convicting defendant upon her plea of guilty of the crime of criminal possession of marihuana in the first degree.

After receiving information from an anonymous caller that a large amount of marihuana was being grown on defendant's farm in the Town of Gallatin, Columbia County, two State Police investigators flew over defendant's farm via helicopter and observed the frame of a dilapidated former greenhouse containing what appeared to be mature marihuana plants. One of these two investigators later walked through defendant's 103-acre farm, observed a large number of marihuana plants growing in several locations, and photographed some of the plants. Based on these observations, a search warrant was issued and the marihuana plants, as well as other items, were seized and defendant was arrested. After County Court denied her suppression motion, defendant pleaded guilty to criminal possession of marihuana in the first degree. This appeal ensued.

Defendant first asserts that she could not properly be indicted under Penal Law § 221.30 for possession of marihuana because Public Health Law § 3382, not the Penal Law, prohibits the growing of marihuana plants. We disagree. Penal Law § 221.30 prohibits possession of "preparations, compounds, mixtures or substances of an aggregate weight of more than ten pounds containing marihuana". "Marihuana" is defined, for purposes of that statute, as, inter alia, "all parts of the plant of the genus Cannabis, whether growing or not" (Public Health Law § 3302[20]; see, Penal Law §§ 221.00, 220.00[6] ). Given this definition, there is no bar to prosecution under Penal Law § 221.30 for possession of growing marihuana (cf. Matter of Parmeter v. Feinberg, 105 A.D.2d 886, 482 N.Y.S.2d 78).

We agree with County Court that neither the helicopter search nor the foot search of defendant's property was illegal, and the search warrant was not thus rendered invalid. With respect to the helicopter search, we note that we have previously approved such aerial observation under the "open-field" doctrine (see, People v. Abbott, 105 A.D.2d 1029, 483 N.Y.S.2d 452). Further, the Supreme Court has recently determined that aerial observation of a defendant's backyard may form the basis for a search warrant, there being no reasonable expectation of privacy from such observation (California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210). With respect to the foot search, this court has ruled in two similar cases that such searches are not unconstitutional and do not render subsequent search warrants invalid (see, People v. Joeger, 111 A.D.2d 944, 490 N.Y.S.2d 41; People v. Gustafson, 101 A.D.2d 920, 475 N.Y.S.2d 913). Finally, defendant's reliance on People v. Abbott, 94 A.D.2d 831, 463 N.Y.S.2d 103 in requesting another suppression hearing is misplaced since Abbott preceded the Supreme Court's decision in Oliver v. United States 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214, which reaffirmed the "open-field" doctrine (cf. People v. Abbott, 105 A.D.2d 1029, 483 N.Y.S.2d 452, ...