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People v. Concepcion

38 N.Y.2d 211 Court N.Y. Decision date 1975-12-22 English

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The People of the State of New York, Respondent, v Mario Concepcion, Appellant.
Argued November 18, 1975;
decided December 22, 1975
Steven Lloyd Barrett and William E. Hellerstein for appellant.
I. The officers’ account of the occurrences culminating in
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the sale of cocaine by appellant was so riddled with inconsistencies and dependent on improbable fortuities that it must be deemed incredible as a matter of law; moreover, as this fabrication suggests that all the cocaine was seized upon an initial exploratory search, absent both probable cause and a warrant, the cocaine should be suppressed. (People v Berrios, 28 NY2d 361 ; Blum v Fresh Grown Preserve Corp., 292 NY 241 ; People v De Tore, 34 NY2d 199 ; People v Ledwon, 153 NY 10 ; People v Galbo, 218 NY 283 ; Matter of Harriot, 145 NY 540 .) II. Assuming arguendo that the officers’ account is fully accredited, their postsale warrantless search of the distant refrigerator was unconstitutional, since it extended beyond the permissible scope of a warrantless search pursuant to a valid arrest, and since there existed no exigent circumstances to except their search from the warrant requirement. (Sibron v New York, 392 US 40 ; Rios v United States, 364 US 253 ; People v Butterly, 25 NY2d 159 ; Chimel v California, 395 US 752 ; Coolidge v New Hampshire, 403 US 443 ; United States v Rabinowitz, 339 US 56 ; Pixel v Wainwright, 492 F2d 480 ; People v Spinelli, 35 NY2d 77 ; United States v Mapp, 476 F2d 67 ; People v Ernest K, 38 AB2d 394, 30 NY2d 884 .)
Mario Merola, District Attorney (Jo-Lynne Quong Lee of counsel), for respondent.
I. Defendant’s guilt was established beyond a reasonable doubt. (People v De Tore, 34 NY2d 199 ; People v Pesky, 254 NY 373 ; People v Lobel, 298 NY 243 ; People v Leonti, 18 NY2d 384 .) II. Defendant’s Fourth Amendment rights were not violated when police officers seized narcotics from the refrigerator. (Brown v United States, 411 US 223 ; Simmons v United States, 390 US 377 ; People v Estrada, 28 AD2d 681 , 23 NY2d 719 ; Mancusi v DeForte, 392 US 364 ; United States v Capra, 501 F2d 267 ; United States v Lopez, 420 F2d 313 ; Katz v United States, 389 US 347 ; Chimel v California, 395 US 752 .)

Memorandum. The order of the Appellate Division should be affirmed.

Whether reasonable cause exists to conduct a warrantless search and seizure is essentially a factual determination and, as such, is beyond the scope of the power of review of this court unless, of course, the determination is erroneous as a matter of law (People v Alexander, 37 NY2d 202 , 204, and the authorities cited therein). No error of that magnitude is evident on the record now before us. The only evidence

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adduced at the suppression hearing was from the two undercover police officers who testified that based on information supplied by two informers and corroborated by their own visual observations, they concluded that defendant, a bartender, was storing a quantity of cocaine in the kitchen refrigerator of the bar where he worked, and had sold the drug to a patron. The officers further testified that defendant was not informed of his constitutional rights nor arrested until after the refrigerator was opened in his presence and its contents examined. In view of our limited power of review, we conclude that the courts below could properly have found that the search and seizure were properly conducted; that "there was not a wide-ranging, exploratory, rummaging, or routine search of the character condemned in Chimel v. California ( 395 US 752 )” (People v Clements, 37 NY2d 675 , 680; see, also, People v Fitzpatrick, 32 NY2d 499 , 508; cf. People v Floyd, 26 NY2d 558 , 563).

The claim that the testimony of the officers was so riddled with inconsistencies and improbable fortuities that it must be deemed incredible as a matter of law must be rejected. Not only are the alleged discrepancies insignificant in comparison to the totality of the officers’ testimony, but they bear little, if any, relevance to the fundamental factual issues. To the extent that the credibility of the balance of their testimony is challenged, we need only reiterate that credibility is a factual issue which is not generally within the competence of our review (People v Alexander, 37 NY2d 202 , 204, supra).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.

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