People v. Carmona

208 A.D.2d 369, 617 N.Y.S.2d 20, 1994 N.Y. App. Div. LEXIS 9409

Opinions

Order of the Supreme Court, New York County (Frederic S. Berman, J.), entered September 11, 1992, which suppressed physical evidence and a statement, and dismissed the indictment, is reversed, on the law and facts, the motion for suppression is denied, and the indictment reinstated, and the matter remanded for further proceedings.

Officer Susan Murray testified that she and other officers from her unit, including Officer Richard Regan, took part in a drug operation where Officer Regan was "in an observation post”, and "we’re the stash car, the backup team”. She testified as to her extensive narcotics training and at least 250 cocaine related arrests. She had previously worked with Officer Regan in similar drug operations "at least 20 times, 25 times”. She testified that she received a radio transmission from Officer Regan that a Hispanic male fitting defendant’s description "was selling crack, and the crack was stashed in the base of a street light” on the "southeast corner, 107th Street and Amsterdam Avenue”. Officer Murray went to that location where, still guided by Officer Regan on the radio, she placed defendant under arrest and recovered "one brown paper bag containing three plastic bags of alleged crack from the base of the street light. Officer Regan told me it was there.”

Officer Regan was assigned to a narcotics observation post on a rooftop at the northwest corner of 107th Street and Amsterdam Avenues. He testified that he saw "numerous”, which was defined as "more than two or three” unapprehended persons approach defendant who was standing in front of 174 West 107th Street, diagonally across the street on the southeast corner. In each instance, defendant would speak to the person, accept money, go to the base of a street light "right off 171 West 107th Street” which was across the street, pick up a brown paper bag, and give the person a small opaque plastic bag taken from the brown paper bag. "After these transactions occurred, [defendant] would go back to the street light and put the bag back down on the ground”.

We find that Criminal Term erred when it suppressed the money and drugs recovered and also the statements made by the defendant. An exchange of money for a glassine envelope or other recognizable drug package creates probable cause to arrest (People v McRay, 51 NY2d 594). Thus, the Court of Appeals in McRay noted:

"If in the past the glassine envelope was a 'telltale sign of heroin’, it can now be deemed the hallmark of an illicit drug exchange.

"It is against this background that this court should outline certain circumstances which, when combined with the exchange of a glassine envelope, may give rise to a finding of probable cause. To begin with the most obvious, if money is passed in exchange for the envelope, probable cause almost surely would exist * * *. Exchange of currency negates all but the most implausible explanations for the transaction, and thus conveys more than sufficient indicia of a drug sale to warrant an arrest. Similarly, additional evidence of furtive or evasive behavior on the part of the participants suffices to establish probable cause * * *. Such evidence, suggesting consciousness of guilt, has traditionally been considered some proof of a crime.” (Supra, at 604.)

Here, Officer Regan testified that defendant had conversations with a number of people. Defendant received money from each of these individuals after a short conversation. Again, in each of these "transactions” defendant went across the street to a brown paper bag hidden at the base of the streetlight and extracted "a small plastic bag” which he brought back across the street and handed to the waiting customer. Thus, not only was there an exchange of money for a glassine envelope, i.e., "a small plastic bag”, in as many as three separate transactions, but the defendant went across the street to a hiding place in the base of a streetlight to get the plastic bags for each transaction, "additional evidence of furtive or evasive behavior” which "suffices to establish probable cause” (supra, at 604).

The defendant echoes the suppression court in citing several factors such as the lack of testimony as to the observing officer’s experience and as to whether this was a drug-prone location. However, the backup officer, Murray, was called by the People to establish a prima facie case of probable cause for the arrest. Once Officer Murray testified as to the radio call from the observing officer detailing the sale of cocaine by the defendant, the People had met their burden of going forward to show the legality of the arrest. The testimony of the observing officer, Regan, was elicited by the defendant when Officer Regan was called as the defendant’s witness. It is not surprising, under these circumstances, that Officer Regan’s background and experience were not explored. In any event, Officer Murray, the backup officer, testified as to her extensive training and experience with over 250 drug arrests. She also testified as to Officer Regan’s drug related experience noting that Regan had worked with her on previous drug observations "at least 20 times, 25 times”. In addition, the fact that the police set up a narcotics observation post at this corner supports the reasonable inference that this was an area rampant with narcotics activity. "The locale was so rampant with drugs as to be one of the targets of a special police operation.” (People v McRay, 51 NY2d, supra, at 606.) Further, McRay makes it clear that the exchange of money is a much more important factor in establishing probable cause for arrest than evidence of a drug-prone location and the officer’s experience, which would become relevant in the absence of an exchange of money (supra, at 604). Concur—Sullivan, J. P., Kupferman, Asch and Williams, JJ.