| People v McNair |
| 2007 NY Slip Op 09427 [45 AD3d 872] |
| November 27, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daniel McNair, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Daniel M. Reback of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered February 10, 2005, convicting him of criminal possession of a controlled substance inthe third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial, after a hearing, of that branch of the defendant's omnibus motion whichwas to suppress currency found on his person.
Ordered that the judgment is affirmed.
The defendant's contention that the controlled substances recovered by the police shouldhave been suppressed is unpreserved for appellate review, as he did not move in the trial court tosuppress the controlled substances (see People v Walker, 251 AD2d 356 [1998]). In anyevent, the controlled substances were abandoned by the defendant and therefore admissible (see People v Oliver, 39 AD3d 880[2007]; People v Flynn, 15 AD3d177 [2005]). Further, the defendant's contention that the police lacked probable cause toarrest him is without merit (see People v Bittner, 97 AD2d 33, 38 [1983]). A policeofficer with substantial experience handling narcotics cases testified at a hearing that he observedthe defendant exchanging a very distinctive blue plastic bag commonly used to packagecontrolled substances for currency. This testimony established that the police had probable causeto arrest the defendant, and the recovery of money from him was proper as incident to his lawfularrest (see People v Jones, 13 AD3d393 [2004]). Accordingly, the County Court properly denied that branch of the defendant'somnibus motion which was to suppress currency found on his person.[*2]
The defendant's challenge to the trial court's Sandovalruling (see People v Sandoval, 34 NY2d 371 [1974]) is without merit. The courtproperly balanced the probative value of the defendant's prior crimes on the issue of hiscredibility and the possible prejudice to him and avoided any undue prejudice by precluding theprosecutor from eliciting the underlying facts or specific charges (see People v Mack, 6 AD3d 551[2004]).
Contrary to the People's contention, the defendant's challenge to the legal sufficiency of theevidence is preserved for appellate review (see People v Mendez, 34 AD3d 697 [2006]). However, viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, upon the exercise of our factual review power (see CPL470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
Finally, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.