In re Shermaine J.

208 A.D.2d 158, 622 N.Y.S.2d 694, 1995 N.Y. App. Div. LEXIS 1606
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 16, 1995
StatusPublished
Cited by6 cases

This text of 208 A.D.2d 158 (In re Shermaine J.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Shermaine J., 208 A.D.2d 158, 622 N.Y.S.2d 694, 1995 N.Y. App. Div. LEXIS 1606 (N.Y. Ct. App. 1995).

Opinion

OPINION OF THE COURT

Williams, J.

A petition was filed on July 26, 1993 against respondent, then 15 years old, charging him with acts, which if committed by an adult, would constitute the crimes of criminal possession of a controlled substance in the third, fifth, and seventh degrees, and criminal sale of a controlled substance in the third and fifth degrees.

At a hearing where respondent sought to suppress a paper bag containing three red-capped vials and $80 in United States currency seized at the time of his arrest, Police Officer Zhoroff testified. Officer Zhoroff stated that he was a six-year veteran of the New York City Police Department and that he had made approximately 50 arrests. He testified that he had been assigned to the Street Narcotics Enforcement Unit for AVz months immediately preceding respondent’s arrest, and had made 15 drug-related arrests during that time.

On July 21, 1993, he was stationed at an "observation post” located in an empty, window-encompassed room on the third floor of a building on the northeast corner of 15th Street and 9th Avenue. He had been assigned to this location because of the high incidence of drug activity known to occur there.

At approximately 10:30 p.m., Zhoroff, using binoculars, observed respondent on the northwest corner of 15th Street and 9th Avenue. He was approached by a tall black male wearing a plaid-colored shirt and they conversed. Respondent then walked over to the entrance of a garage on 15th Street, approximately 30 feet from the corner at 9th Avenue, remained there for about 15 seconds, and returned to the black male, who waited for him on the corner. Officer Zhoroff observed the respondent hand the black male an "item” in exchange for United States currency.

Officer Zhoroff continued to observe the black male as he walked away from respondent. Zhoroff observed him take a glass tube out of his pocket, put it in his mouth, light it, and smoke it. Realizing that the black male was probably smoking crack cocaine, Zhoroff radioed a description of him to his backup team, and he was subsequently apprehended and a crack pipe recovered from him.

Officer Zhoroff testified that five minutes later, he observed [161]*161an Hispanic male, currency in hand, approach the respondent. The two conversed briefly before respondent returned to the garage entrance, came back, and exchanged an item for the Hispanic man’s currency. Zhoroff observed the Hispanic man cross the street and get into a car, at which time he radioed a description of the man and the car to backup officers, who then apprehended him and recovered from him a crack pipe and two red-capped vials of crack cocaine.

Officer Zhoroff then immediately radioed the backup with a description of the respondent so that they might apprehend him. Zhoroff testified that he did not witness respondent’s arrest, but that he did see the arresting officer, Officer Hafner, recover a brown paper bag from a corner of the garage entrance.

Officer Hafner, who was the officer in radio contact with Officer Zhoroff and who arrested the black male, testified as to the transmissions received from Zhoroff. She stated that she arrested respondent, after he was described to her, across 15th Street from the garage entrance. Respondent was walking towards 10th Avenue when she approached and asked him what he had been doing on the 9th Avenue corner. His reply was that he was "waiting for a friend”. Officer Hafner arrested respondent and recovered $80 from his pants pocket; she also retrieved from the corner of the left side of the garage entrance a brown paper bag containing three red-capped vials of crack.

The Family Court granted respondent’s motion to suppress both the drugs and the money. Although it credited the officers’ testimony, the court found that the evidence was improperly seized as a matter of law, citing Matter of Kevin W. (188 AD2d 301) in support of its view that the officer’s observation of exchanges of unidentified items for currency merited some lesser degree of suspicion and inquiry, but not probable cause to arrest. The court, however, found that respondent did not intentionally abandon the brown paper bag containing the three crack vials.

Three issues are raised on this appeal: whether or not the officer had probable cause to arrest respondent; whether or not respondent abandoned the brown paper bag; and whether or not the petition was jurisdictionally defective.

"Probable cause requires, not proof beyond a reasonable doubt or evidence sufficient to warrant a conviction * * * but merely information which would lead a reasonable person who [162]*162possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed” (People v McRay, 51 NY2d 594, 602). "[T]he basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice” (People v Carrasquillo, 54 NY2d 248, 254).

Analysis of the probable cause issue relative to a warrant-less arrest based on police surveillance of street narcotics trafficking, begins with People v McRay (supra), where the Court of Appeals enunciated three "guideposts” relevant in assessing probable cause: The observation of a telltale sign of an illicit drug exchange, such as a glassine envelope; a high incidence of narcotics trafficking in the area; and the training and experience of the police officer (People v McRay, supra, at 601-602, 604). The Court also speaks of additional circumstances, such as money passed in exchange for a glassine envelope or furtive or evasive behavior on the part of participants in the alleged transaction (People v McRay, supra, at 604-605), which in combination with the "guideposts” may allow an inference of probable cause to be properly drawn.

In several cases, this Court has found that probable cause would not exist but for the presence of circumstances in addition to the three McRay factors. In other words, where one or more of the three McRay factors is weak or lacking, probable cause may be found in the totality of the circumstances (People v Owens, 155 AD2d 696, 697).

For instance, in People v Shaw (193 AD2d 390, lv denied 82 NY2d 853), a police officer with five years’ experience and over 100 drug-related arrests observed defendant, at a drug-prone location, engage in four separate transactions within a 10-minute period, the defendant in each instance reaching into a crumpled white paper bag for unidentified objects which he exchanged for United States currency. The buyers were described by the officer as "furtive and nervous” (supra, at 390), and one of the buyers fled the scene when approached by the officers. This Court held that the buyer’s flight escalated the officer’s reasonable suspicion of criminal activity to the level of probable cause necessary to justify arrest.

In People v Cedeno (193 AD2d 540, lv denied 82 NY2d 715), a case involving the same officer and drug location as Shaw (supra), this Court held that after observing four transactions [163]*163involving exchange of an unidentified object for United States currency over a period of 30 to 40 minutes, the officer lacked probable cause but had reasonable suspicion sufficient to justify a stop and inquiry.

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Bluebook (online)
208 A.D.2d 158, 622 N.Y.S.2d 694, 1995 N.Y. App. Div. LEXIS 1606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-shermaine-j-nyappdiv-1995.