| People v Perez |
| 2008 NY Slip Op 00303 [47 AD3d 1071] |
| January 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Elias Perez,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 19, 2004, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the second degree (two counts).
In satisfaction of a three-count indictment stemming from sales of cocaine to undercoverpolice officers, defendant pleaded guilty to two counts of criminal sale of a controlled substancein the second degree. Defendant was then sentenced to consecutive terms of imprisonment of fiveyears to life and six years to life. Contending that the evidence seized upon his arrest should havebeen suppressed, defendant now appeals and we affirm.
As an initial matter, although defendant waived his right to appeal, a review of the pleahearing transcript reveals that County Court failed to adequately distinguish the right to appealfrom those rights automatically forfeited upon a plea of guilty. Thus, defendant's oral waiver ofhis right to appeal was invalid and we will address his suppression argument (see People v Lopez, 6 NY3d 248,256 [2006]; People v Lewis, 39AD3d 1025, 1025 [2007]; People vCain, 29 AD3d 1157, 1157 [2006]).
Turning to his argument on appeal, defendant contends that County Court erred indetermining that the police had probable cause to arrest him without a warrant and, as a result,[*2]the articles seized from him upon his arrest should have beensuppressed. We disagree. Under the fellow officer rule, an arrest is lawful, "even if an arrestingofficer lacks personal knowledge sufficient to establish probable cause," so long as that officer "'acts upon the direction of or as a result of communication with a superior or [fellow] officer oranother police department provided that the police as a whole were in possession of informationsufficient to constitute probable cause to make the arrest' " (People v Ramirez-Portoreal,88 NY2d 99, 113 [1996], quoting People v Horowitz, 21 NY2d 55, 60 [1967]; seePeople v Ketcham, 93 NY2d 416, 419-420 [1999]; People v Rosario, 78 NY2d 583,588-589 [1991], cert denied 502 US 1109 [1992]; People v Bell, 5 AD3d 858, 859 [2004]; People v Williams,305 AD2d 802, 803 [2003], lv denied 100 NY2d 589 [2003]; People v Samuels,270 AD2d 779, 780 [2000]). Notably, and contrary to defendant's assertion, the officer directinga defendant's arrest does not have to communicate the probable cause basis for the arrest to thearresting officers; instead, the fellow officer rule is satisfied when the officer directing the arrestpossessed probable cause at the time the arrest is ordered (see People vRamirez-Portoreal, 88 NY2d at 113-114; People v Rosario, 78 NY2d at 588-589;People v Williams, 305 AD2d at 803). When an arrest is challenged by a motion tosuppress, the burden is on the People to establish that probable cause existed (see People vKetcham, 93 NY2d at 420; People v Ramirez-Portoreal, 88 NY2d at 113-114).
At the suppression hearing, Fernando Ortega—a State Policeinvestigator—testified for the People. He stated that, on the morning of defendant's arrest,he and a fellow investigator purchased a quantity of cocaine from defendant. Following the drugpurchase, Ortega and his partner dropped defendant off at the bus station where he was arrestedby members of the City of Albany Police Department at the behest of Ortega. Inasmuch as theforegoing established that probable cause existed for defendant's arrest, defendant's suppressionmotion was properly denied (see People v Williams, 305 AD2d at 803).
Defendant's remaining arguments have been considered and found to be without merit.
Cardona, P.J., Spain, Kane and Malone, JJ., concur. Ordered that the judgment is affirmed.