55 A.D.2d 695 | N.Y. App. Div. | 1976
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 24, 1976, convicting him of criminal possession of a controlled substance in the sixth degree and attempted bribery in the second degree, upon a plea of guilty, and imposing sentence. The appeal brings up for review the denial of defendant’s motion to suppress the contraband seized at the time of the arrest. Judgment reversed, on the law and the facts, motion to suppress granted, and indictment dismissed. At about 4:30 a.m., on March 10, 1975, a uniformed police officer on motor patrol responded to a radio run concerning a dispute on Avenue V in Brooklyn. The "dispute” was not otherwise described. It was dark out. As the officer alighted from the car he was driving, he saw the defendant walking towards him. At a distance of four or five feet, he, the officer, noticed that a plastic bag containing a white powder was protruding, to the extent of about one inch, from the breast pocket of defendant’s shirt. Nadel was wearing a jacket over the shirt, but it was open. Based on what he described as his prior experience with narcotics, the office "retrieved” the substance and placed Nadel under arrest. At the suppression hearing the officer testified that he had made about 100 narcotics-related arrests during his eight years on the force. On cross-examination he conceded that of those 100 narcotics arrests, 48 or 49 failed to produce convictions after testing by the police laboratory disclosed that the items were nonnarcotic substances. Despite this serious dilution of his direct testimony, as a result of which his