People v. Cunningham

Judgments of the Supreme Court, New York County, rendered September 29, 1975, convicting appellants upon their pleas of guilty, of criminal possession of a dangerous drug in the second degree (former Penal Law, § 220.22) and imposing upon each an indeterminate sentence of up to four years, affirmed. We do not dispute the facts as narrated in the dissenting opinion. Unlike our dissenting brother and contrary to the claim of appellants, we do, however, find the police had probable cause to enter the apartment. We therefore conclude that the evidence was lawfully seized. Probable cause exists, "if the facts and circumstances known to the * * * officer warrant a prudent man in believing that [an] offense has been committed” (People v Oden, 36 NY2d 382, 384, citing Henry v United States, 361 US 98, 102; Brinegar v United States, 338 US 160, 175-176). Detective Maste had probable cause to believe that the occupants of Apartment No. 51 had committed or were committing a crime, i.e., packaging large quantities of narcotics for street distribution. The police had proceeded to Apartment No. 51 in response to a radio dispatch that shots were fired there and that the caller who had reported the occurrence described the apartment as a known narcotics location. Moments after the police had announced their arrival at the door of the apartment, Detective Maste, from a vantage point on the roof (one story above the apartment), observed one of the occupants stick her head out of the window, look around and then place on the fire escape a large orange wastebasket (approximately 10 to 12 inches high), a box (approximately five inches square to approximately one foot high opened at the top), both filled with multicolored balloons, and a plastic bag filled with what Detective Maste believed to be either powder or sand. Based upon his experience as a police officer in the field of narcotics, Detective Maste knew the balloons were often used to package "narcotics [which had] to be cut down again for street sale.” The logical conclusion he drew was that the occupants of the apartment were engaged in a large-scale, illegal narcotics operation. Detective Maste proceeded down the stairs inside the building from the roof to the fifth floor (where Apartment No. 51 was located) and together with some of his fellow officers, gained access to the apartment. Once inside, they seized the evidence. The predicate for the police conduct was not an observation such as the mere passing of an envelope (see People v Oden, supra; People v Thomas, 62 AD2d 945; see, also, People v Corrado, 22 NY2d 308) or of a tinfoil package (see People v Elliott, 62 AD2d 956) or of pieces of tinfoil from one person to another in return for pieces of green paper (People v Maldonado, 59 AD2d 692). Rather, the police action was grounded upon the totality of the facts and circumstances known to Detective Maste before he entered the apartment—factors which, based on his expertise, produced probable cause. It is not necessary to indulge in speculation, as does our dissenting brother, that "If safety had permitted, the officer could have approached the balloons and plastic bag to confirm his suspicion” and thus would have known with "certitude” whether the balloons were being used as party accessories or heroin receptacles. Police conduct should be viewed in a realistic, not antiseptic setting. A police officer on the fire escape, examining the wastebasket, box and plastic bags, would have been, literally, "under the gun”, especially as it was known shots had been fired in the apartment. To expect the officer to stand in front of the window and clinically examine the contents of the wastebasket, box and plastic bag to verify that narcotics were contained therein, stretches credulity. The test for determining the existence of probable cause does not require "certitude” that a crime was, or was being, committed. The officers were justified in entering the apartment without a search warrant. The drugs seized herein can be readily classified as "potentially readily disposable contraband, even in the quantities * * * discovered in this case” (People v Clements, 37 NY2d 675, 679; see, also, United States v Manning, 448 F2d 992). Immediate action by the police was required. Insofar as the challenge of appellant Chambers to her sentence, we do not find that the sentence imposed was excessive or that the prosecutor interfered with the court’s exercise of its sentencing discretion. Appellant Chambers was indicted for criminal possession of a dangerous drug in the first degree (former Penal Law, § 220.23), a class A felony. If she had been convicted of this charge, she could have been sentenced to a maximum of life imprisonment. She was arrested while employed as a packager in a major heroin distribution operation. She admitted that this was not the first time she was working there. Accordingly, the imposition of an indeterminate sentence not to exceed four years’ imprisonment upon her plea of guilty to the reduced count of criminal possession of a dangerous drug in the second degree cannot be deemed excessive. Although the court may have preferred to impose a sentence of probation, nevertheless, it is clear that the court accepted the sentencing recommendations made by the prosecutor in connection with the offer of appellant Chambers’ plea to the reduced count. Finally, appellant Chambers provides no factual basis upon which to justify modification of the sentence already served (cf. People v Johnson, 67 AD2d 639; People v Johns, 69 AD2d 755).