People v. Scretchen
| Citation | 146 Misc.2d 228,550 N.Y.S.2d 232 |
| Parties | The PEOPLE of the State of New York, v. Julian SCRETCHEN, Fred J. Dennis, Samuel Jefferson, Walter Swann and Cynthia Williams, Defendants. |
| Decision Date | 30 November 1989 |
| Court | United States State Supreme Court (New York) |
Robert T. Johnson, Dist. Atty., Richard Lopez, Asst. Dist. Atty., New York City, for People.
Howard Ripps, New York City, for Jefferson.
David J. Goldstein, New York City, for Dennis.
Michael J. Nedick, New York City, for Swann.
Herman Blitz, New York City, for Scretchen and Williams.
In this case the five defendants were charged with various narcotics and weapons violations: criminal possession of a controlled substance in the first, second, third and fourth degrees; criminal sale of a controlled substance in the first and third degrees; criminal use of drug paraphernalia in the second degree; criminal possession of marijuana in the fifth degree; and criminal possession of a weapon in the fourth degree. The defendants sought by motion to controvert a search warrant and to suppress cocaine, crack, marijuana and items used to package crack, and a gun obtained from the first floor of a building at 413 East 179th Street. The defendants claimed that the affidavit used to apply for the warrant failed to provide probable cause to believe that contraband would be found on the first floor, and that there was no probable cause to believe that illegal activity was going on in the building. In several colloquies with counsel the Court raised the issue of the defendants' standing to controvert the warrant and to challenge the search and seizure. The Court also raised the issue of whether, should the warrant be found invalid, the seizure might be justified on some other theory. Police Officer Daniel Berry and defense witness Anthony Lloyd testified at the hearing.
This Court concludes that the statutory room-presumption gives the defendants standing to challenge the entry into the building and the subsequent search, seizures and arrests based on a claim of lack of probable cause. This Court finds there was probable cause to enter the building, search the first floor, and arrest the defendants. Because the search warrant used to enter the building was invalid and the area searched was not shown to be the residence of any of the defendants, this case requires resolution of an issue of first impression: whether the statutory room presumption, alone and without the presence of a legitimate expectation of privacy, provides standing to challenge a warrantless but otherwise legal entry into a building and the arrest and seizures which followed. This Court holds that the room presumption does not give standing to challenge the police conduct based on the absence of a valid warrant. Consequently the entry, arrests, search and seizures without a valid warrant were valid. 1
Each defendant has standing to challenge the validity of the entry into the building and the subsequent arrests and seizures because the room presumption of Penal Law § 220.25(2) applies to each defendant. The statutory room presumption permits a presumption of knowing possession by each person in close proximity to a narcotic drug, in open view in a room which is not a public place under circumstances evincing an intent to prepare the drug for sale. The presumption also applies to a person who has just left a room in which the drugs are located, or who was in or seen leaving an adjacent room. People v. Daniels, 37 N.Y.2d 624, 376 N.Y.S.2d 436, 339 N.E.2d 139 (1975); People v. Alexander, 152 A.D.2d 587, 543 N.Y.S.2d 504 (2d Dept.), lv. den., 74 N.Y.2d 804, 546 N.Y.S.2d 562, 545 N.E.2d 876 (1989); People v. Frazier, 138 A.D.2d 401, 525 N.Y.S.2d 684 (2d Dept.), lv. den., 72 N.Y.2d 859, 532 N.Y.S.2d 509, 528 N.E.2d 899 (1988); People v. Massene, 137 A.D.2d 624, 524 N.Y.S.2d 512 (2d Dept.), lv. den., 71 N.Y.2d 899, 527 N.Y.S.2d 1008, 523 N.E.2d 315 (1988); People v. Hylton, 125 A.D.2d 409, 509 N.Y.S.2d 128 (2d Dept.1986), lv. den., 69 N.Y.2d 881, 515 N.Y.S.2d 1029, 507 N.E.2d 1099 (1987); People v. Staley, 123 A.D.2d 407, 506 N.Y.S.2d 469 (2d Dept.), lv. den., 68 N.Y.2d 1004, 510 N.Y.S.2d 1037, 503 N.E.2d 134 (1986); People v. Chandler, 121 A.D.2d 644, 503 N.Y.S.2d 875 (2d Dept.), lv. den., 68 N.Y.2d 913, 508 N.Y.S.2d 1033, 501 N.E.2d 606 (1986). Each factor necessary for application of the presumption has been shown to exist here.
The premises searched was not a public area. The first floor consisted of a front door which opened into a hallway. The hallway had three rooms on its left side. At its back end, the hallway opened into a kitchen. Off the kitchen was a fourth room. The confidential informer advised Police Officer Berry that defendant Dennis was the lessee of the first floor although the owner of the building was someone else. Each of the rooms off the hallway was rented to someone other than Dennis. Anthony Lloyd testified he lived on the second floor, but had never been on the first floor except in the entryway to the staircase. This was not an area to which the general public had access although other evidence shows that people dealing with Dennis were in and out of the first floor.
Each defendant was found in close proximity to the drugs. When the police entered the building, they found Dennis in the third bedroom off the hallway, the one just before the kitchen. Scretchen and Jefferson were in the bedroom off the kitchen, and Williams was in the hallway. Swann was seen walking up the street following the undercover officer who had left the building. Although there is no direct evidence of Swann's presence on the first floor, it is a logical inference from all the evidence. He followed the undercover officer from the building up the street so that he either had to have seen that the undercover officer was in the building, or had been told by the others, who were in the building during the events, to follow him.
Quantities of drugs and other drug paraphernalia were found in open view. A plate of crack was on the kitchen table. In the bedroom adjoining the kitchen, five large bags of cocaine were found on the bed, a large quantity of crack and marijuana was found on top of the dresser, cocaine and drug paraphernalia were also found. Each defendant was or had been within minutes of the seizure in close proximity to the drugs.
The statutory room presumption can be used against the defendants both to establish probable cause to arrest and to prove guilt of the crimes charged. Accordingly, this Court concludes that under People v. Millan, 69 N.Y.2d 514, 516 N.Y.S.2d 168, 508 N.E.2d 903 (1987), and People v. Wesley, 73 N.Y.2d 351, 540 N.Y.S.2d 757, 538 N.E.2d 76 (1989), the presumption gives the defendants standing, with the exception set out below, to challenge the police conduct. In Millan the Court of Appeals examined the automobile statutory presumption which created a rebuttable presumption of possession by all people in an automobile of a gun found in the vehicle. The Court wrote "We hold simply that the People may not predicate defendant's guilt solely on the constructive possession of the weapon attributed to him as a passenger in the cab based on the presumption and simultaneously deprive him of the right to challenge the search." Id. 69 N.Y.2d at 519, 516 N.Y.S.2d 168, 508 N.E.2d 903. In Wesley, the Court again dealing with an automobile presumption, explained the presumption allows a prima facie case to be established by a single circumstance, it "form[s] the sole basis for conviction." 73 N.Y.2d at 361, 362, 540 N.Y.S.2d 757, 538 N.E.2d 76. The room presumption authorizes conviction on the same basis as the automobile presumption. Consequently the unfairness condemned in Millan would also exist if standing were denied in a case involving the room presumption. See People v. Castillo, N.Y.L.J., July 7, 1989, p. 24, col. 2 (Sup.Ct.New York Cty.).
The distinguishing feature between the two presumptions is that the gun in the automobile need not be in plain view, but the drugs in the room must be observable. This difference, however, does not result in a variation in the grant of standing. Rather, the difference is relevant only to the arguments the defendant may make to the trier of fact to rebut the presumption.
In this case, the prosecution may choose ultimately not to rely solely upon the presumption to establish guilt, at least as to some of the defendants. Nonetheless, that should not preclude standing. Berry testified he arrested at least some of the defendants because of their proximity to drugs. The presumption was used by this Court to establish probable cause for arrest of all defendants, although as to Dennis and Swann there were also other grounds. Even if a trial is to come in the future, the precise use of the presumption by the prosecutor is unknown, but reasonably likely.
Based on both the testimony given at the hearing and the information in the affidavit in support of the warrant which came from undercover police officers, there was probable cause to believe that on June 23, 1988, narcotic drugs were present on the first floor of the building and that Dennis would be present at that location.
The defendants, by way of motions to quash and suppress, claim they were entitled to the protection of a warrant, a level of protection above that assured by application of the probable cause standard. Although People v. Stewart, 153 A.D.2d 597, 544 N.Y.S.2d 386 (2d Dept.1989), appears to hold that standing based on the...
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