decided: November 14, 1968.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
FRED COHEN, APPELLANT
Appeal, by permission of an Associate Judge of the Court of Appeals, from a judgment of the Appellate Term of the Supreme Court in the Second Judicial Department, entered October 20, 1967, affirming a judgment of the Criminal Court of the City of New York, Kings County (Royal S. Radin, J.), which convicted defendant, upon his plea of guilty, of violating section 3305 of the Public Health Law (possession of narcotic drugs, as a misdemeanor). At a hearing held upon a motion by defendant, subsequently denied, to suppress evidence obtained after an arrest allegedly made without probable cause, a police detective testified that on May 11, 1966 he observed defendant standing with two other men on a street corner; that he was "about a foot away from them" and heard one of defendant's companions say to the other "Give me forty dollars, and I'll get you the stuff", whereupon the latter gave him $40; that defendant then said to the man who had given the money to his companion "Go across the street to the luncheonette and wait for us. We'll be right back"; that the man did so and defendant then walked away; that the police detective went into the luncheonette, then left again, and, about five or eight minutes later, defendant and the man who had received the $40 returned and, variously, the latter or defendant told the man who had given the money "We got the stuff", and that the detective, who was "right behind them" and "Not more than a foot" away, then identified himself as a police officer and searched defendant, removing two envelopes from his person. The detective testified further that he had never seen defendant or either of his companions prior to this incident; that he was not a member of the narcotics bureau but had made 10 previous narcotics arrests, more than one half of which had resulted in convictions, and that the word "stuff" meant narcotics, although he had heard the word used to refer to stolen property. In the Court of Appeals defendant argued that the arresting officer did not have probable cause to believe that a crime was being committed in his presence.
Concur: Judges Scileppi, Bergan, Keating, Breitel and Jasen. Chief Judge Fuld and Judge Burke dissent.
Judgment affirmed; no opinion. Chief Judge Fuld and Judge Burke dissent and vote to reverse upon the ground that the detective acted without the requisite probable cause to make a valid arrest and the evidence obtained incidental to this invalid arrest should be suppressed.
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