Opinion
October 15, 1970
Order entered on July 1, 1969, which granted defendant-respondent's motion to dismiss the indictment against him, unanimously reversed on the law, the motion denied, and the indictment reinstated. The indictment, dismissed for lack of connective evidence, named defendant and three others, charging them, under the old Penal Law, with three counts of various types of possession of narcotic drugs arising out of the one incident. The minutes of the Grand Jury reveal that respondent was observed by police, with his codefendants, to one of whom he gave a particularly described paper bag marked with tape in a distinctive manner, and this was in turn handed to a third defendant. The last recipient and the fourth man immediately left the scene by automobile with the package, followed by police, who continued to observe that vehicle in progress until it stopped for a traffic light about 10 blocks away. Nothing was thrown from the car during the journey but, when it stopped at the light and one of the police approached it, a package was thrown out of the vehicle from the side occupied by the person who had been seen earlier entering it with a package. The thrown package was never lost sight of and forthwith recovered. No other package resembling that described as having been passed by respondent to his codefendant was found either in the car or on the persons of either occupant. The contents of the package were, on appropriate examination, found to be heroin. The chain of connection between respondent and the package found to contain heroin is thus demonstrated prima facie as unbroken, excluding any possibility otherwise. This chain is stronger, if anything, than that found in People v. Repola ( 280 App. Div. 735, affd. 305 N.Y. 740), and the facts are clearly different from those in People v. Anderson ( 24 N.Y.2d 12), cited in the decision here reviewed. This conclusion is inescapable, even excluding completely from consideration the police officer's statement that he "believed" the package recovered to be the same package as that first handed over by a codefendant to respondent. The search of the car and of its occupants, even though resulting only in negative evidence, is examined and found to be completely justified as incidental to the arrest of the two occupants based on what the police had observed, inclusive of their inspection of the contents of the abandoned, thrown package. Section 251 of the Code of Criminal Procedure sets the standard by which sufficiency of evidence before a Grand Jury is measured: "The grand jury ought to find an indictment, when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury." The evidence here examined comes up to that standard.
Concur — Stevens, P.J., McGivern, Markewich and Steuer, JJ.