Pubdate: Fri, 05 Apr 2002
Source: Daily Gazette (NY)
Copyright: 2002 The Gazette Newspapers
Contact:  http://www.dailygazette.com/
Details: http://www.mapinc.org/media/105
Author: Laura Suchowolec

APPEALS COURT REVERSES ALBANY DRUG CONVICTION

Justices Fault Man's 1999 Arrest By City Police

ALBANY - An appeals court threw out a man's drug conviction Thursday and 
ruled that police had no legal reason to arrest him.

Even though Albany police saw two small bags of crack cocaine being thrown 
out the window and Ronald Montgomery later admitted that he did it, police 
illegally arrested him, the Appellate Division of state Supreme Court ruled 
Thursday.

Albany police went to an apartment at 123 N. Lake Ave. on March 5, 1999, 
looking for a suspect in a recent assault.

Montgomery's sister, who lived there, let police into her apartment. Police 
saw Montgomery and another man sitting near the window the cocaine had been 
thrown from.

City police officers frisked Montgomery and the other man, James Nelson, 
and found nothing illegal on them. Police also searched the apartment, with 
the tenant's permission, and found no drugs or drug paraphernalia.

The only other people present in the apartment were two children who had 
been asleep and police concluded that Montgomery and Nelson must have 
possessed the cocaine that they saw thrown out the window. Both were 
arrested, taken to the police station and read their rights.

Montgomery then confessed that the cocaine - which turned out to weigh 14 
grams - was his and that he threw it out the window. Montgomery was 
indicted and then convicted of third-degree criminal possession of a 
controlled substance after a trial in Albany County Court.

He was sentenced to seven to 14 years in state prison but appealed his 
conviction. He argued that his lawyer - who didn't question the legality of 
Montgomery's arrest or the ensuing confession - didn't give him effective 
legal representation.

The Appellate Division of state Supreme Court said that though failing to 
make a pretrial motion is not usually grounds to reverse a conviction, it 
was in this case.

"We discern no legitimate strategic or tactical explanation for defense 
counsel failing to seek a hearing" to have Montgomery's arrest declared 
illegal and have the confession he gave suppressed, the court ruled.

Because no drugs or drug paraphernalia were discovered during the search of 
the apartment, police had no business arresting him without a warrant, the 
court ruled.

"Moreover there was no evidence of any overt criminal activity or furtive 
behavior . . . or any other facts that may support a claim that defendant 
constructively possessed the drugs," wrote Associate Justice John A. 
Lahtinen for the court. "The defendant's mere presence in the apartment 
from which the crack cocaine was thrown did not establish probable cause 
that he possessed it."

The Appellate Division ruled that Montgomery's arrest was illegal and the 
confession he gave to police was a result of that illegal arrest.

"Consequently, in light of our determination that the police lacked 
probable cause to arrest the defendant, we are constrained to reverse the 
defendant's conviction, suppress his oral statement . . . and dismiss the 
indictment," Lahtinen wrote.

Prosecutors could not be reached for comment Thursday evening to determine 
whether they plan to appeal the unanimous decision.
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