People v. Robertson

• Decision Date: 27 March 1978
• Citation: 61 A.D.2d 600,403 N.Y.S.2d 234
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald ROBERTSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 234

403 N.Y.S.2d 234

61 A.D.2d 600

The PEOPLE of the State of New York, Respondent, v. Ronald ROBERTSON, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 27, 1978.

David R. Carlin, New York City, for defendant-appellant.

Billie Manning, New York City, of counsel (Irwin M. Miller, New York City, with her on the brief; Mario Merola, Dist. Atty.), for respondent.

Before KUPFERMAN, J. P., and LUPIANO, YESAWICH, SANDLER and SULLIVAN, JJ.

LUPIANO, Justice.

The People's case discloses that on November 9, 1973, at about 3:00 a. m., Oliver Stephen, the landlord of a two-family house located at 3343 Paulding Avenue, Bronx, New York, pursuant to complaints made by the downstairs tenant regarding the occupants of the second-floor apartment, investigated those premises. Not receiving a response after knocking on the upstairs apartment door, Stephen entered the apartment by means of a pass key. Though rented, the apartment was virtually vacant. A search of the premises by Stephen disclosed a white powdered substance and glassine envelopes in a box. He notified the police and upon their arrival outside the Paulding Avenue address, informed them that there were drugs in the upstairs apartment. He escorted the police to the apartment and directed them to the box. The officers observed the contents which also included drug paraphernalia. The apartment was secured and these items were brought to the precinct, where a preliminary field test on some of the bags of powder indicated the possible presence of cocaine. This indication later proved to be unfounded. Afterwards the material was returned to the apartment. In the interim, a search warrant was obtained. Further search of the premises disclosed 291 glassine envelopes of heroin in a shopping bag above the bathroom ceiling and an additional quantity in a refrigerator in the kitchen. While officers were present, at about 5:30 p. m. defendant and one Jeffrey Jones entered the apartment. Defendant entered first, followed some thirty seconds later by Jones. After entering the apartment, defendant turned on the lights and was observed to verbally and facially manifest surprise when he noted the presence of cigarette ashes dropped in the kitchen sink by the investigating officers. The officers then revealed their presence and seized the two men. A set of keys to the apartment, rent receipts and a business card from the realty agent who rented the dwelling were subsequently taken from defendant. Defendant's companion, Jones, a furlough absconder from the Eastern Correctional facility in New York, was carrying a cardboard box containing an electric drill and two large plastic envelopes of heroin.

The defendant did not testify, but his companion, Jones, appeared as a witness on defendant's behalf. According to Jones, he and defendant, whose acquaintance he made while both were serving sentences at Sing Sing penitentiary, were joined on November 9, 1973 by one "Rose," who presented Jones with a box, rent receipts and a set of keys to the apartment at Paulding Avenue. The box contained a drill, according to "Rose." The purpose of their visit to the apartment and the proposed use of the contents of the box were not testified to. When the two men arrived at the apartment, they let themselves in and were surrounded and frisked by the police. Jones disclosed that he had not been to the apartment prior to that occasion and admitted using a different name to avoid detection as a furlough absconder.

When the upstairs apartment became vacant in August, 1973, the landlord engaged Osborne Real Estate to rent it. Ms. Hall of that agency testified that the apartment was rented by the agency on a month-to-month basis, without a written lease, to an individual who called himself Roosevelt Anderson and gave as his address 263 West 114th Street. Rent and fee receipts were issued on October 11 and 13, 1973, and the only keys in the agent's possession were given to Anderson. No check was made by the agency to determine if Anderson had actually moved into the apartment. Ms. Hall further testified that she had not seen the defendant before the trial.

The jury returned a verdict of guilty on both counts of the indictment criminal possession of a controlled substance in the first degree and criminally using drug paraphernalia in the second degree.

On appeal, defendant argues that the initial search and seizure by the police of the box and its contents was illegal and the evidence thereafter obtained must be suppressed as "tainted." In denying defendant's pre-trial motion to suppress evidence, Trial Term (Weaver, J.) noted:

". . . unlawful entry by a private person unconnected with law enforcement agents is not a violation of the Fourth Amendment and will not result in the exclusion of the contraband at a criminal proceeding (People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625; Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048). Therefore, the question of whether Mr. Stephen was initially authorized to enter the apartment is irrelevant, since any contraband seized by him would not result in the exclusion of such evidence in the criminal proceeding. However, once Stephen called the police officers to the scene, we must consider whether the officers could enter the apartment and seize the box containing heroin without a search warrant. The purpose of the exclusionary rule is to deter unconstitutional conduct by law enforcement officers (United States v. Durkin, 335 F.Supp. 922; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564). Stephen, when he first saw the white powder, had no contact with a law enforcement official. He was acting on his own behalf. If Stephen would have removed the powder and taken it to the police station, there would have been no Fourth Amendment violation. However, Stephen did not do that; he called the police officers and informed them of the powder in the apartment. The fact that the police officer entered the apartment at Stephen's instance is of no significance, since Stephen intended to reveal what he had found to the police and to cause such an inspection to be made (United States v. Durkin, supra, at p. 926). Once the inspection was made and the powder analyzed and returned to the apartment, the police had sufficient probable cause to apply for a search warrant. It was after the search warrant was signed that a thorough search of the apartment was conducted and the contraband seized."

Regarding the conduct of the landlord, Mr. Stephen, we observe that after his initial entry into the apartment be noted that it was virtually vacant. This fact, coupled with the complaints received respecting these accommodations, led him in his capacity as landlord to examine the premises. Upon discovering the narcotics, he determined to notify the police. This action was complimentary to Mr. Stephen, both in his capacity as a citizen mindful of his duty and responsibilities and as a landlord mindful of his own self-interest. Real Property Law § 231 pertinently provides:

"1. Whenever the lessee or occupant other than the owner of any building or premises, shall use or occupy the same, or any part thereof, for any illegal trade, manufacture or other business, the lease or agreement for the letting or occupancy of such building or premises shall thereupon become void, and the landlord of such lessee or occupant may enter upon the premises so let or occupied. 2. The owner of real property, knowingly leasing or giving possession of the same to be used or occupied, wholly or partly, for any unlawful trade, manufacture or business, or knowingly permitting the same to be so used, is liable severally, and also jointly with one or more of the tenants or occupants thereof, for any damage resulting from such unlawful use, occupancy, trade, manufacture or business" (Emphasis supplied).

Of course it is well recognized that the term "void" in subdivision 1 of section 231 of the Real Property Law means voidable at the option of the landlord (220 West 42 Associates v. Cohen, 60 Misc.2d 983, 302 N.Y.S.2d 494 (App.Term, 1st Dept. 1969)) and it is requisite for a landlord opting to void such lease to evict the tenant by initiating a holdover summary proceeding. We merely allude to the statutory enactment as reflective of the reason and common sense displayed by Mr. Stephen.

Even assuming that the removal of the box and its contents to the precinct house for field tests by the police was improper the fact that the landlord intended to disclose the presence of suspected narcotics to the police and to cause such an inspection to be made, coupled with the observation by the police of the contents of the box, amply justify the issuance of the search warrant. In issuing the warrant herein based upon the affidavit of police officer Donnelly, the court was apprised of the informant's identity, how his information was obtained, and had independent corroborative verification of his account. The underlying circumstances thus conveyed to the court in support of the belief of the affiant as to the reliability of the information justify the issuance of the warrant. Mr. Stephen was not a professional informer, but a private citizen. "The average citizen who provides the authorities with information as to observed criminal activity does so with no expectation of private gain. Rather, he aids the police in enforcing the laws in order to promote the safety and order of the society as a whole" and is not as inherently suspicious as are the underworld denizens upon whom the police must often rely (People v. Hicks, 38 N.Y.2d 90, 94, 378 N.Y.S.2d 660, 664, 341 N.E.2d 227, 230 (1975)). In informing, the landlord subjected himself to civil damages for malicious prosecution if he furnished false information causing a person's premises to be unlawfully searched. The mere fact that an affidavit of the landlord was not presented in addition...