44 A.D.2d 730 | N.Y. App. Div. | 1974
— Appeal from a judgment of the County Court of Montgomery County, rendered April 18, 1973, convicting defendant on his plea of guilty of criminal possession of a dangerous drug in the sixth degree (Penal Law, former § 220,05). Defendant entered a plea of guilty to the crime of which he has been convicted in satisfaction of an indictment charging criminal possession of a dangerous drug in the third degree (Penal Law, former § 220.20) and possession of narcotic implements (Public Health Law, § 3395). This appeal brings up for review the denial of a motion to suppress certain evidence seized at the defendant’s residence pursuant to a search warrant. On September 25, 1972, Trooper B. B. McCully of the New York State Police received information from “ a confidential informant of known reliability” that defendant was expecting a “multi-pound shipment of marijuana from a friend in California” either that day or the day after. The informant also advised McCully that defendant stated that “he would be packaging the drug for sale purposes at his residence upon receiving the shipment ”. The officer verified, through; an agent of the Railway Express police, that a package weighing approximately 10 pounds had been sent by one Fuller, from a California address, to defendant, at his Amsterdam, NeV York, address, and that the package had arrived at the Air Freight terminal in Albany on September 25. Upon examining the package with the Railway Express agent, McCully alleged that he recognized the odor of marijuana about it. On the basis of the. above information, McCully obtained a search warrant' directing a search of defendant’s residence for the aforesaid package and “any other narcotic and dangerous drug, and any paraphernalia and/or written records used in the illicit trafficking of narcotic and dangerous drugs ”, to be executed at the imminent receipt of the package. Other police officers staked out the defendant’s.residence on September 26 and waited for Railway Express to deliver the package. However, when delivery was attempted, the Railway Express driver was for some unexplained reason unable to leave the package at the residence. Defendant was arrested later that day when