People v. Charles J.

73 A.D.2d 322, 425 N.Y.S.2d 978, 1980 N.Y. App. Div. LEXIS 10053
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 20, 1980
StatusPublished
Cited by3 cases

This text of 73 A.D.2d 322 (People v. Charles 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
People v. Charles J., 73 A.D.2d 322, 425 N.Y.S.2d 978, 1980 N.Y. App. Div. LEXIS 10053 (N.Y. Ct. App. 1980).

Opinions

OPINION OF THE COURT

Sullivan, J.

At issue is the legality of a search predicated upon the transfer of a single glassine envelope, approximately one to one and one-quarter inches long by one-half to five-eighths of an inch wide, in circumstances which indicated to a police officer surveying the exchange that a sale of heroin had taken place. Certain uncontroverted facts were established at the suppression hearing.

On the afternoon of February 26, 1977, at approximately 1:30 p.m., Police Officers Gerrish and Evans stationed themselves on the second floor of an abandoned building at 300 West 128th Street and, using binoculars, began observing the intersection of West 128th Street and 8th Avenue and the adjacent sidewalks. This intersection is within the 32nd precinct, to which the officers were assigned.

During the seven years that he had been assigned to the 32nd precinct Officer Gerrish had made approximately 100 arrests for narcotics violations, at least 75 of which had involved heroin. Of the heroin arrests 30 to 40 had taken place at the intersection of 128th Street and 8th Avenue, and he had made 25 to 30 arrests on his personal observations of transactions between individuals previously unknown to him. In addition, Officer Gerrish had received training in the recognition and packaging of narcotics at the police academy.

Some 10 minutes after taking up his observation post, Gerrish began to focus his attention on defendant, who was part of a group congregated on the northeast corner of the intersection, approximately 75 to 100 feet away. Defendant was observed in brief conversations with passers-by who would approach, speak to him, and then walk away. While others in the group would come and go, defendant remained in the same location, on the corner, sometimes leaning against a building on 8th Avenue, at other times standing away from the building, but never farther than a few feet. The composition of the group changed throughout the period of observation, varying in size from as few as 3 or 4 to as many as 10 to 12.

[324]*324At approximately 2:25 p.m. an unidentified male wearing an imitation leather coat approached defendant. Through his binoculars Gerrish observed defendant reach into the right hand pocket of a sweater he was wearing under his jacket and remove a white glassine envelope, which he passed to the male in the leather jacket. Gerrish did not see any exchange of money.

The officers immediately left their observation post. According to plan, Gerrish was to take defendant into custody while Evans, to whom Gerrish had furnished a description, was to apprehend the man in the leather jacket.1 When Gerrish approached defendant, he immediately reached into defendant’s right hand sweater pocket and removed several glassine envelopes. Gerrish informed defendant that he was under arrest and advised him of his Miranda rights. Additional glassine envelopes were recovered from defendant’s left hand sweater pocket. Later, at the station house, defendant admitted possession of 16 glassine envelopes.2 Subsequent analysis showed that the glassine envelopes contained heroin.

The suppression court found Officer Gerrish’s testimony credible. Conceding that the mere passing of a glassine envelope in a neighborhood known for narcotics transactions is not a sufficient basis for an arrest, the court held that the facts and circumstances surrounding the transfer here were, nevertheless, sufficient to raise the level of inference from suspicion to probable cause. We agree.

Just four months ago, in People v Hester (71 AD2d 121) we held that a sidewalk transfer of three bundles of glassine envelopes in a high crime area, accompanied by furtive actions (looking up and down the street) on the part of both transferor and transferee, did not constitute probable cause. In so doing we reaffirmed the principle, long espoused by this court, and first enunciated, as dictum, by the Court of Appeals in People v Corrado (22 NY2d 308, 313), that the mere passing of a glassine envelope, the contents of which the police suspect might be narcotics, was insufficient to establish probable cause to arrest. (See People v Goss, 67 AD2d 876; People v Thomas, 62 AD2d 945; see, also, People v Maldonado, 59 AD2d 692.)

No especial formula exists by which to measure the reason[325]*325ableness of a police officer’s conclusions after he has observed what he perceives to be a drug transaction. In People v Brown (24 NY2d 421, 423) the Court of Appeals found a lack of probable cause where "[t]he observed activity on which the arrest was based [consisted of]: a high crime area, a suspected narcotic addict, a meeting, parting, return, and movement of hands.” On the other hand, in People v Smith (21 NY2d 698, 700) the court upheld a seizure based upon police observations on two separate occasions, only three days apart, of a series of at least 10 callers each day, who had knocked on an apartment door, conversed briefly with the occupant, and eventually handed him money. In addition, in People v Valentine (17 NY2d 128), a search was sustained which followed police observations of the defendant who, standing on a street corner, was approached by others and handed money in bill form on at least six occasions. In People v Cohen (23 NY2d 674), the officer’s suspicions based on his observations were buttressed when he overheard conversations between the suspects. And, in People v Quinones (33 NY2d 811), the officer was close enough to the transaction to recognize the contents of the envelopes being transferred, while in People v Rowell (27 NY2d 691), he was in such close proximity that he was able to observe a quantity of glassine envelopes on the floor of the automobile.

In People v Oden (36 NY2d 382) the Court of Appeals had occasion to reassert the principle that the mere passing of a glassine envelope does not provide probable cause in affirming the suppression of narcotics seized by a police officer who, while on a stakeout in a neighborhood having a high crime rate, happened to notice the passing of a glassine envelope, the contents of which he could not see. The court noted (p 385) that the hearing court had failed to "credit or accept the proof regarding the [defendant’s] quick look or the ambiguous testimony concerning [the] closing of her hand tightly or that the envelope appeared white—all part of the fact-finding process.” It recognized its lack of power to review questions of fact, citing, inter alia, People v Leonti (18 NY2d 384, 390) and Cohen and Karger (Powers of New York Court of Appeals [rev ed], § 198, p 742). The court explicitly left open the issue of whether, "on different inferences or dissimilar credibility considerations”, other findings of fact indicative of "additional bases for probable cause”, would have been sufficient to justify the police actions. (People v Oden, supra, at p 386.)

[326]*326Shortly thereafter, in People v Alexander

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Bluebook (online)
73 A.D.2d 322, 425 N.Y.S.2d 978, 1980 N.Y. App. Div. LEXIS 10053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-charles-j-nyappdiv-1980.