FACTS

The People's case rests on the testimony of Detective

James Malone of the New York City Police Department, Narcotics Bureau (T. M. p. 16). He was the prosecution's sole witness at

the hearing on the motion to suppress and the key witness for the People at the trial.

The People's only other witnesses at the trial were Detective Walter Cullen of the New York City Police Department, Narcotics Bureau, a rebuttal witness, called after the defense rested its case (T. M. p. 177); and Mary Gilbert, a Police Narcotics Laboratory chemist who testified as to the nature of the contents of the packets in question, cannabis, commonly known as marijuana (T. M. p. 84).

Detective James Malone's Trial Testimony

Detective Malone's trial testimony sets forth this tale:

On Friday evening, April 2, 1965, at about 8:30 P. M.,

Detective Malone and his partner, Detective Cullen, were parked in Cullen's car, near a bowling alley, on Bronx River Avenue, just east of Bruckner Boulevard in The Bronx (T. M. pp. 16-18, 42).

Malone observed a 1959 Chevrolet park about 20 feet

from their car, on the same side of the street2, the front of

Cullen's car was facing south while the front of the Chevrolet was

facing north, so that the front of Cullen's car was on a line with the trunk of the Chevrolet (T. M. pp. 53-54).

Rosario was behind the driver's wheel of the Chevrolet

and Lanclos was seated alongside. The defendants got out of

Rosario's car and went back to its trunk. Rosario removed a large shopping bag, belonging to him3, from the trunk and handed it to

Lanclos (T. M. pp. 18-20)4.

(At this point, Malone believed that a crime was being

5

committed in his presence (H. M. p. 16)).

2.

3.

4.

5.

At the hearing, Malone originally testified that the cars were 35 feet apart, parked on opposite sides of the street

(H. M. p. 6). The reason for the change is apparent. If the cars were parked on opposite sides of the street, as testified to at the hearing, and they faced in opposite directions, then Malone, while sitting in his car, would have had his back toward the defendants, and he would not have been able to see Rosario and Lanclos at the trunk.

Testimony of Angel Rosario, T. M. p. 135.

Cullen testified that he was unable to see the "handling" of
the shopping bag, claiming that his view was blocked by
Malone's head and shoulder (T. M. pp. 179-180).

"H. M." refers to the transcript of the Hearing Minutes on
the Motion to Suppress.

Thereafter, Cullen drove his car at Malone's

command (H. M. p. 180) and parked it a couple of feet behind the 1959 Chevrolet (T. M. p. 56), blocking it. Malone alighted about

3 or 4 feet from Lanclos (T. M. p. 58) and walked after Lanclos (T. M. p. 50) who was walking, about 5 or 6 feet from Rosario's car, with the shopping bag in his hand (T. M. pp. 48-49).

Then Lanclos looked in Malone's direction and

"dropped"6, 7

the shopping bag (T. M. p. 19) to the ground about

5 or 6 feet from Rosario's car (T. M. p. 20), almost at Malone's feet. There was no indication that Malone was a police officer. Malone was not wearing a uniform or badge and did not announce that he was a police officer (T. M. p. 58). Lanclos had been in possession of the shopping bag for a total of "maybe 10 seconds" (T. M. p. 78).

6.

7.

At the hearing, Malone originally testified that the shopping bag dropped from Lanclos' hand (H. M. p. 6). Later, at the hearing, he changed his testimony and claimed that Lanclos threw the shopping bag to the ground (H. M. p. 15). At the trial, he backtracked and testified that Lanclos dropped the shopping bag (T. M. p. 19).

There is no testimony by Cullen that he saw any part of the "dropping" incident (T, M. pp. 178-197).