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.