In re Audino M. , 349 N.Y.S.2d 728 ( 1973 )

McGivern, J. P.

(dissenting). I would uphold the Family Court Judge (Caputo, J.) when he placed the youth on probation for a period of six months, on condition he co-operate with the Urban League; and I would affirm the determination of Family Court Judge (Otten, J.), when he found the youth to have been in possession of dangerous drugs, an act which, if committed ,by an adult, would constitute a crime (Penal Law, § 220.15).

Patrolman John Lynch, a plainclothesman, assigned to a narcotics unit, was investigating a building for a ‘1 possible narcotics violation ” located at 8 Bast 110th Street, East Harlem, Manhattan. The 'officer and his partner proceeded to the rear of a tenement, which they discovered to be 4 Bast 110th Street, when they also observed the juvenile herein, a 14-year-old boy, in the front part of the structure. It was 1:30 p.m., a time when boys of that age are usually in school. As Patrolman Lynch tells it:tl We tried to get past him without him noticing us and all of a sudden he turned around and saw us. At that particular time, I said, ‘ How are you doint [sic], M. ? and he just took off out of the building and ran out into the street. I pursued after him and he was trying to — when I caught him he had his key in his door and was trying to get into his apartment house at 8 East 110th Street. I noticed a bulge in his pocket. I asked him what he had in his pocket. He didn’t say anything to me. I reached into the pocket and came up with manila envelopes ”. And the manila envelopes were 22 in number, containing marijuana. And there were also 12 tinfoil packets of cocaine. Such an assembly would indeed create a sizeable “ bulge, ” — on a lá-year-old boy.

CPL 140.50 permits an officer .to stop and question a person if he has a reasonable suspicion that the person was committing a felony or has committed a felony or Class A misdemeanor. And possession of a dangerous drug is a Class A misdemeanor.

Taking the totality of the circumstances: the nature of the . officer’s specific assignment, his expertise, the high, crime background of the locality, the boy’s apparent truancy, his flight, Ms .silence, the enormous “bulge ” in his trousers — and I conclude the street-wise officer was justified in his actions. And I am unable to distinguish the instant case from Matter of Jeffrey W. (affd. 43 A D 2d 669), where again an alert police officer descried a “ bulge ” ,on the left hip of a boy in a men’s room in a theatre, and inspection displayed a loaded gun. The Family Court, Bungs County (Ramírez, J.), placed the youth in the State Training School. And the Appellate Division, allowing the revolver in evidence, unanimously upheld the Family Court.

Jeffrey W, (supra) is in line with the disposition recently adopted by tMs tribunal in the Matter of Ricci S. (41 A D 2d 406) wherein, again sustaining the Family Court (Dembitz, J„), we refused to suppress a safari knife found by a policeman on a young man in Chelsea as he sallied forth from a house under observation for narcotics.

There is notMng innovative about the foregoing. In People v. Rosemond (26 N Y 2d 101, 103-104 [1970]) the Court of Appeals stated that section 180-a of the Code of Criminal Procedure (the predecessor of CPL 140.50):

‘ ‘ is not the beginning and the end of the right and duty of police to make inquiries of people on the public streets. Nor does it prescribe the full scope of police activity. * * *

“ A statute, such as this .one, addressed to a particular situation and designed to give legal justification for .specially prescribed procedures ought not to be read to narrow down the normal duty :of police to find out by suitable inquiry what %s~ going forward in the public streets ” (emphasis supplied).

And, again, it must be remembered, we are not evaluating quantum of proof as required for a conviction, but only whether an officer, having been informed that the building was being used for narcotics purposes, had reasonable grounds for the search of a reticent urchin whose conduct aroused his educated judgment. We must view the episode not through the eyes of a layman, but of an officer on a specific mission. And the fact that he was correct is not insignificant. (People v. Fenuta, 39 A D 2d 674; People v. Meyers, 38 A D 2d 484.)

Lastly, I cannot forbear the observation that the learned Family Court Judge herein, not only did the right thing legally, he did what was right for .the boy. This youth was clearly a courier, being used as a walking warehouse by dope ‘ ‘ pushers ”, latter day ‘ ‘ Fagins ’ ’, so that if the plainclothesmen moved in, this poor young gamin would be found as the possessor of the drugs, while his masters, the adult vermin, and the real villains, would go free. For it is well known that since the enactment of the new drug laws, the professional merchants have gone underground. And this ‘1 'Court should not be ignorant as judges of what-we know as men.” (Watts v. Indiana, 338 U. S. 49, 52.) We honor not the* Constitution by straining its filamentary refinements to such blind and unrealistic lengths that we stretch it to protect such a sordid operation. We not only defeat able police work, we keep free the guilty, and in this instance, do a rare disservice to the boy. The majority, overriding the prudent disposition of the Family Court Judge, wise in these matters, send the youth back to the asphalt jungle, unsupervised, and in all probability, release him for a repeat performance as a perambulating inventory of death-dealing drugs.

The punishment meted out to this juvenile, six months’ probation, in collaboration with the Urban League, was constructive and benign, and would have benefited the boy.

Hence, I would keep hands-off and affirm; or at most remand to the Hearing Judge for findings.

Murphy and Laxe, JJ., concur with Capozzoli, J.; McGtvern, J. P., dissents in an opinion in which Steuer, J., concurs.

Order of the Family Court of the State of New York, Néw York County, entered on April 12, 1973, reversed, on the law, and the petition dismissed, without costs and without disbursements.