| People v Williams |
| 2007 NY Slip Op 08283 [45 AD3d 269] |
| November 1, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamieWilliams, Appellant. |
—[*1] Jamie Williams, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Allen H. Saperstein of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Margaret Clancy, J.), rendered October 14, 2005,convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near schoolgrounds and criminal sale of a controlled substance in the third degree, and sentencing him, as asecond felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly denied defendant's suppression motion. At the initial suppression hearing,the People established that the purchasing undercover officer and the ghost officer described theseller by race, gender and specific clothing to the arresting officer, who found defendant a fewminutes later sitting at the exact location of the sale, and that defendant was the only person inthe vicinity who matched the description. Nevertheless, the hearing court initially ruled that thisinformation was insufficient to provide probable cause for defendant's arrest, and it suppressedthe buy money recovered from his person. However, the court granted the People's application toreopen the hearing, finding that it had misled the People as to the scope of the hearing anddeprived them of a fair opportunity to prove probable cause, as opposed to reasonable suspicion.At the reopened hearing, the People elicited additional evidence that the ghost officer specificallyidentified defendant before he was arrested and searched. The court then ruled that the newtestimony about the ghost established probable cause, but it also ruled, contrary to its priordetermination that had been adverse to the People, that the radioed description independentlyprovided probable cause given the spatial and temporal factors. We conclude that the latter rulingwas correct (see e.g. People vTucker, 25 AD3d 382 [2006], lv denied 7 NY3d 764 [2006]), and that the courtcorrectly vacated its original erroneous determination and substituted a determination adverse todefendant. Since the additional testimony adduced at the reopened hearing was not necessary tothis determination, we need not reach the question whether the court properly reopened thehearing.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence. There is no basis for disturbing the jury's determinations concerning identification andcredibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). There was ample evidenceof [*2]defendant's guilt, including his possession of the buymoney.
Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters outside the record concerning counsel's strategic choices (seePeople v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).On the existing record, to the extent it permits review, we find that defendant received effectiveassistance under the state and federal standards (see People v Benevento, 91 NY2d 708,713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Defendant'sother pro se arguments are unpreserved and we decline to review them in the interest of justice.Were we to review these claims, we would reject them. Concur—Tom, J.P., Saxe,Sullivan, Gonzalez and Sweeny, JJ.