| People v Scott |
| 2019 NY Slip Op 05589 [174 AD3d 1049] |
| July 11, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jerel M. Scott, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), forappellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered June 13, 2016, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree, criminal possession of a controlled substance in theseventh degree and resisting arrest.
In January 2015, members of the City of Albany Police Department conducted a buy-bustoperation with the assistance of a confidential informant (hereinafter the CI). Following theoperation, during which a bag of cocaine and the buy money were recovered from defendant,defendant was arrested and charged in a multicount indictment with various crimes. Prior to trial,defendant moved to suppress the cocaine and the marked buy money seized from him. CountyCourt denied the motion, finding that probable cause existed to arrest defendant. Following a jurytrial, defendant was convicted of criminal sale of a controlled substance in the third degree,criminal possession of a controlled substance in the seventh degree and resisting arrest.Defendant was thereafter sentenced to a prison term of two years, followed by two years ofpostrelease supervision, for his conviction of criminal sale of a controlled substance in the thirddegree and to time served for the remaining convictions. Defendant appeals. We affirm.
Defendant argues that County Court erred in denying his suppression motion. We disagree."Probable cause does not require proof sufficient to warrant a conviction beyond a reasonabledoubt but merely information sufficient to support a reasonable belief tha[t] an offense has beencommitted by the person arrested" (People v Dorsey, 151 AD3d 1391, 1393 [2017] [internal quotationmarks and citations omitted], lv denied 30 NY3d 949 [2017]; see People v Jenkins, 90 AD3d1326, 1327 [2011], lv denied 18 NY3d 958 [2012]; People v Parker, 84 AD3d 1508,1509 [2011], lv denied 18 NY3d 927 [2012]). The testimony from the suppressionhearing established that the CI was searched before the buy-bust operation took place and noillegal contraband or money was discovered on him. The CI, who was outfitted with audiorecording and transmitting equipment, went into a red car in which defendant was sitting in thefront passenger seat. After hearing that the transaction took place, officers from the takedownunit, who were given defendant's description, were advised to stop the red car. A detective withthe takedown unit testified that defendant tried to flee but was subdued. While defendant wasbeing restrained, cocaine fell out of his sock and the buy money was discovered in his pocket. Inour view, the foregoing evidence was sufficient to demonstrate that probable cause existed toarrest defendant (see People vStroman, 106 AD3d 1268, 1269-1270 [2013], lv denied 21 NY3d 1046 [2013];People v Folk, 44 AD3d 1095,1096 [2007], lv denied 9 NY3d 1006 [2007]). Accordingly, defendant's suppressionmotion was correctly denied.
Defendant contends that the verdict with respect to his convictions of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in theseventh degree was not supported by legally sufficient evidence and was against the weight of theevidence.[FN*] As relevanthere, a defendant is guilty of criminal sale of a controlled substance in the third degree "when he[or she] knowingly and unlawfully sells . . . a narcotic drug" (Penal Law§ 220.39 [1]). As also relevant here, a defendant is guilty of criminal possession ofa controlled substance in the seventh degree "when he or she knowingly and unlawfullypossesses a controlled substance" (Penal Law § 220.03).
The relevant testimony adduced at trial largely mirrored the evidence received at thesuppression hearing. Viewing the trial evidence in the light most favorable to the People, we findthat the proof was legally sufficient to support the conviction for criminal sale of a controlledsubstance in the third degree (see Peoplev Torres, 146 AD3d 1086, 1087 [2017], lv denied 29 NY3d 1087 [2017]; People v Gibson, 121 AD3d 1416,1417 [2014], lv denied 24 NY3d 1119 [2015]; People v Pacheco, 274 AD2d 746,748 [2000], lv denied 95 NY2d 937 [2000]). Further, although a contrary result wouldnot have been unreasonable, viewing the record evidence in a neutral light, we find that theverdict as to criminal sale of a controlled substance in the third degree and criminal possession ofa controlled substance in the seventh degree was supported by the weight of the evidence (see People v Peterkin, 159 AD3d1196, 1198 [2018], lv denied 31 NY3d 1151 [2018]; People v Cooley, 149 AD3d 1268,1269-1270 [2017], lv denied 30 NY3d 979 [2017]; People v Miles, 61 AD3d 1118, 1119-1120 [2009], lvdenied 12 NY3d 918 [2009]; People v Holt, 281 AD2d 749, 750 [2001], lvdenied 96 NY2d 902 [2001]). To the extent that defendant challenges the credibility of thesergeant who saw the cocaine come out of defendant's sock, we defer to the jury's resolution ofthe witness's credibility (see People vWilliamson, 77 AD3d 1183, 1184 [2010]).
We reject defendant's argument that County Court erred by failing to preclude the voiceidentification testimony of a detective who assisted in the takedown of defendant because thePeople failed to give proper notice under CPL 710.30. Given that this detective listened to therecording for the first time at trial, he did not participate in any pretrial identification procedure.Accordingly, under these circumstances, the notice provisions of CPL 710.30 were inapplicable(see People v Garcia, 22 AD3d880, 881 [2005]; People vButler, 16 AD3d 915, 917 [2005], lv denied 5 NY3d 786 [2005]). Nor are wepersuaded by defendant's contention that the testimony identifying defendant's voice by thedetective who organized the buy-bust operation should have been precluded as unreliableinasmuch as "alternative indices of reliability are . . . found in [the] surroundingfacts and circumstances" of this case (People v Lynes, 49 NY2d 286, 291-292 [1980]; see People v Hoffler, 41 AD3d891, 893 [2007], lv denied 9 NY3d 962 [2007]).
Garry, P.J., Egan Jr., Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's legal sufficiencycontention is preserved only as it pertains to his conviction of criminal sale of a controlledsubstance in the third degree given that, in his trial motion to dismiss, defendant stated that hewas not making an application with respect to the charge of criminal possession of a controlledsubstance in the seventh degree (seePeople v Keener, 138 AD3d 1162, 1162-1163 [2016], lv denied 27 NY3d 1134[2016]).