| People v Parker |
| 2011 NY Slip Op 03924 [84 AD3d 1508] |
| May 12, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelParker, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (R. Sise, J.), rendered April 1, 2010in Schenectady County, upon a verdict convicting defendant of the crime of criminal possessionof a controlled substance in the third degree.
Defendant was arrested in June 2009 as the result of a buy/bust operation in the Town ofRotterdam, Schenectady County in which undercover police officers arranged to buy cocainefrom codefendant Daniella Gay, who had been identified by a confidential informant as a personseeking to sell narcotics. Two officers met Gay in a shopping plaza parking lot, while otherslistened to the transaction through a radio device. When the undercover officers expressedinterest in buying cocaine, Gay directed them to drive her across the parking lot so she could"meet her man." Upon seeing defendant, she greeted him by name, and defendant asked Gaywhether she was "doing her business." Gay responded that she was working on it, removed asmall package from her clothing and asked defendant how much it weighed. Defendantresponded, "seven." The officers paid Gay $500 for the package, which proved to containcocaine, and defendant and Gay were arrested. A search of defendant's person disclosed asubstantial amount of cash and a plastic bag filled with cocaine.
Defendant was indicted on three counts based upon criminal possession and sale of a [*2]controlled substance. County Court (Berke, J.H.O.) conducted aMapp hearing and found that the police had reasonable cause for defendant's arrest.Following a jury trial, defendant was convicted of one count of criminal possession of acontrolled substance in the third degree. Defendant moved pursuant to CPL 330.30 (1) to setaside the verdict, contending that probable cause for his arrest was lacking and that the evidencewas legally insufficient to establish the weight of the substance found on his person. SupremeCourt denied the motion and sentenced defendant to a prison term of three years followed by twoyears of postrelease supervision. Defendant appeals.
Initially, defendant contends that probable cause for his arrest was lacking because he did notdirectly participate in the exchange of drugs and cash between Gay and the police. We disagree."Probable cause exists when an officer has knowledge of facts and circumstances sufficient tosupport a reasonable belief that an offense has been or is being committed" (People v Bell, 5 AD3d 858, 859[2004] [internal quotation marks and citations omitted]). Such facts and circumstances mustmake it "more probable than not that a crime has taken place and that the one arrested is itsperpetrator" (People v Brown, 151 AD2d 199, 203 [1989], lv denied 75 NY2d768 [1989] [internal quotation marks and citation omitted]). An undercover investigator who wasin the car with Gay testified that, in his experience, drug dealers often distance themselves fromdrug transactions by using others to conduct sales on their behalf. He also stated that he believedGay was acting on defendant's behalf because, unlike drug dealers in the investigator'sexperience, she did not know the weight of the substance she was carrying and had to consultdefendant before she could sell it. The investigator further testified that he understooddefendant's use of the word "seven" to mean that the package weighed seven grams—aweight with a street price consistent with the amount the officers paid. The investigator wasentitled to draw on his experience and knowledge in concluding that the interaction between Gayand defendant provided reasonable cause for defendant's arrest (see People v Brown, 151AD2d at 203; People v Hill, 146 AD2d 823, 824 [1989], lv denied 73 NY2d 1016[1989]). Further, the fellow officer rule entitled the arresting officers, who had not directlyobserved the transaction, to act on information received from the other officers to establishprobable cause for the arrest (see People v Ramirez-Portoreal, 88 NY2d 99, 113-114[1996]; People v Dowling, 75 AD3d838, 840 [2010], lv denied 15 NY3d 952 [2010]).
Defendant next contends that the evidence was legally insufficient to support his convictionin that the People failed to prove that the cocaine found on his person weighed one half of anounce or more (see Penal Law § 220.16 [12]; People v Paige, 77 AD3d 1193, 1196 [2010], affd 16 NY3d816 [2011]). Relying upon cases addressing the reliability of breathalyzer machines, defendantasserts that calibration records should have been introduced to establish the accuracy of the scaleused to weigh the cocaine (see e.g. People v Freeland, 68 NY2d 699, 701 [1986];People v English, 103 AD2d 979, 980 [1984]).
We find no reason to impose that requirement in this matter. The forensic scientist whoweighed the substance testified that the balances she used for this purpose were tested foraccuracy every week by a verification process using standardized weights, and were calibratedevery six months by a service representative. She further testified that there are 28.35 grams in anounce and approximately 14¼ grams in half an ounce, that the substance she testedweighed 27.6 grams, and that it would have been obvious if the scale's accuracy was off by 15grams. Although she also acknowledged that she did not personally calibrate or verify the scaleimmediately before weighing the substance, defendant introduced no expert testimony orauthority for the proposition that such procedures are required to assure reliability of the [*3]weighing device (compare People v English, 103 AD2d at980 n; see also People v Rotundo, 194 AD2d 943, 946 [1993], lv denied 82NY2d 726 [1993]). There was no evidence that the scale was malfunctioning or inaccurate.Viewing the evidence in the light most favorable to the People, we find " 'a valid line ofreasoning and permissible inferences' " from which the jury could rationally have concluded thatthe substance found on defendant's person weighed well over the requisite amount (People v Pearson, 69 AD3d 1226,1227 [2010], lv denied 15 NY3d 755 [2010], quoting People v Steinberg, 79NY2d 673, 682 [1992]; compare People v Thurman, 179 AD2d 382, 383 [1992], lvdenied 79 NY2d 954 [1992]). Accordingly, defendant's CPL 330.30 challenge to the legalsufficiency of the evidence was properly rejected. Further, viewing the evidence in a neutral lightand according the appropriate deference to credibility determinations, we do not find that the juryfailed to give the evidence the proper weight (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Flagg, 30 AD3d889, 892 [2006], lv denied 7 NY3d 848 [2006]).[FN*]
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Although defendant improperlypresented the request for review of the weight of the evidence within his challenge to the denialof the CPL 330.30 application (see People v Carter, 63 NY2d 530, 536 [1984]; People v Bridges, 16 AD3d 911,913 [2005]), we reach this issue in addressing his appeal from the judgment of conviction.