| People v Folk |
| 2007 NY Slip Op 07776 [44 AD3d 1095] |
| October 18, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Raphael Folk,Also Known as Seven, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Alison M. Thorne of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedSeptember 30, 2005 in Albany County, upon a verdict convicting defendant of the crimes ofcriminal sale of a controlled substance in the third degree, criminal possession of a controlledsubstance in the third degree, criminal possession of a controlled substance in the fourth degree,criminally using drug paraphernalia in the second degree and unlawful possession of marihuana.
Defendant was indicted on numerous drug-related offenses stemming from allegations thathe sold cocaine to a confidential informant inside a motel room on the evening of April 5, 2005and that additional amounts of drugs, as well as drug paraphernalia, were thereafter recoveredfrom that motel room when it was searched pursuant to a warrant. A jury found him guilty ofcriminal sale of a controlled substance in the third degree, criminal possession of a controlledsubstance in the third and fourth degrees, criminally using drug paraphernalia in the seconddegree and unlawful possession of marihuana. Sentenced, as relevant on appeal, to an aggregateprison term of seven years, he now appeals.
Defendant first argues that the police lacked probable cause to arrest him. To the extent thatdefendant, in raising this argument, makes repeated challenges to the reliability of the [*2]confidential informant, we note that defense counsel and theprosecution conceded during the Mapp hearing that the information contained within thesearch warrant played no role in defendant's arrest. Rather, his arrest was based on theobservations of the police officers who monitored the sale. Under these circumstances, thereliability of the confidential informant vis-à-vis the issue of probable cause is simply notgermane (see e.g. People v Roark,29 AD3d 1172, 1173 [2006], lv denied 7 NY3d 762 [2006]).
Next, the collective testimony of the experienced police officers involved in the subjectcontrolled buy, which was fully credited by County Court (Breslin, J.) (see e.g. People v Williams, 25 AD3d927, 928 [2006], lv denied 6 NY3d 840 [2006]; People v Reid, 2 AD3d 1061, 1062 [2003], lv denied 3NY3d 646 [2004]), established that sufficient information was obtained by them to provideprobable cause to arrest. These officers established that the confidential informant was searchedfor contraband, outfitted with a transmitting device and provided with $100 in prerecorded buymoney just before his prearranged meeting with defendant. Officers then visually monitored theconfidential informant, at which time they observed him alone with defendant in the parking lotof the motel, observed the twosome enter a particular room and then observed the confidentialinformant exit that room a few minutes later. At this time, the confidential informantimmediately turned over four pieces of crack cocaine.
When defendant left the motel room a short time later, his vehicle was pulled over and hewas placed under arrest.[FN*] While no officer was in the room to witness the actual sale and while no officer overheard itbecause the transmitting device malfunctioned, we are nevertheless satisfied, given the precisesequence of events as detailed by these trained professionals, that the police possessed sufficientinformation to conclude that defendant sold drugs such that probable cause existed to arrest him(see e.g. People v Roark, 29 AD3d at 1173; People v Rose, 2 AD3d 1324, 1325 [2003], lv denied 2NY3d 745 [2004]; see generally Peoplev Shulman, 6 NY3d 1, 25 [2005], cert denied 547 US 1043 [2006]; People vMcRay, 51 NY2d 594, 602 [1980]). Furthermore, since defendant failed to sustain hisburden of demonstrating that the search warrant application contained a false statement madeknowingly, intentionally or recklessly, his request for a Franks hearing was properlydenied (see People v Richardson, 28AD3d 1002, 1005 [2006], lv denied 7 NY3d 817 [2006]).
Next, viewing the evidence adduced at trial in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish defendant's guilt on all counts beyond a reasonable doubt. This evidence included thedetailed testimony of the officers monitoring the controlled buy, evidence that the prerecordedbuy money and key to the subject motel room were recovered from defendant's person upon hisarrest and evidence that defendant rented and occupied the motel room in which the sale tookplace and additional drugs and drug paraphernalia were subsequently recovered. Likewise, uponthe exercise of our factual review power, we are satisfied that the verdict was not against theweight of the evidence (see People v Bleakley, 69 NY2d 490, 494-495 [1987]).
We agree, however, that the sentence imposed for his conviction under count 3 of theindictment (criminal possession of a controlled substance in the fourth degree) was illegal and[*3]therefore must be reduced to 5½ years (comparePenal Law § 220.09 [1] with Penal Law § 70.70 [2] [a] [ii]).
Mercure, J.P., Peters, Spain and Mugglin, JJ., concur. Ordered that the judgment is modified,on the law, by reducing defendant's sentence for criminal possession of a controlled substance inthe fourth degree under count 3 of the indictment to 5½ years, and, as so modified,affirmed.
Footnote *: A search incident to this arrestproduced a key to the motel room, marihuana and the $100 in prerecorded buy money ondefendant's person.