| People v Lynch |
| 2008 NY Slip Op 03245 [50 AD3d 824] |
| April 8, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JulioLynch, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Shalom J. Twersky,and Edward Sherwin of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.),rendered February 7, 2006, convicting him of criminal possession of a controlled substance in thethird degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is affirmed.
The underlying charges arise out of an incident that occurred on January 15, 2005 atapproximately 1:00 a.m. At the suppression hearing, a law enforcement officer testified that,while he and other officers were patrolling in an unmarked minivan, he observed the defendantand another individual engage in an apparent drug transaction. The officers stopped thatindividual and recovered from him a white rocky substance that appeared to be cocaine. Theofficers then drove around the block, whereupon they observed the defendant, one-half blockfrom the location where the original transaction had taken place, engage in an apparent drugtransaction with a woman by giving her an object that appeared to be narcotics. The officer thenarrested the defendant, and recovered from his hands a plastic package containing a substancethat was later determined to be narcotics.
The defendant contends that the Supreme Court erred in denying that branch of his motion[*2]which was to suppress the physical evidence seized upon hisarrest, since the arresting officer's testimony as to his grounds for probable cause was incredibleas a matter of law. In determining whether a hearing court properly determined that an arrest wassupported by probable cause, the resolution of " 'issues of credibility [is] primarily for the trialcourt [whose] determination is entitled to great weight' on appeal' " (People v Lebron,184 AD2d 784, 784 [1992], quoting People v Garafolo, 44 AD2d 86, 88 [1974]; see People v Umadat, 29 AD3d830 [2006]). Here, the officer's testimony was not "manifestly untrue, physically impossible,contrary to experience, or self-contradictory" (People v Garafolo, 44 AD2d 86, 88 [1974][internal quotation marks omitted]; seePeople v Jeter, 6 AD3d 459 [2004]; People v Sanchez, 248 AD2d 306 [1998];People v Olivo, 189 AD2d 786 [1993]). Accordingly, we discern no basis in the record todisturb the suppression court's credibility determination, and the suppression court properlydenied that branch of the defendant's motion which was to suppress the physical evidence.
The defendant further contends that the Supreme Court erred in admitting the detective's trialtestimony regarding the defendant's prior uncharged sale of drugs. Evidence of a defendant'scommission of uncharged crimes or acts is inadmissible "if the only purpose of the evidence is toshow bad character or propensity towards crime" (People v Alvino, 71 NY2d 233, 241[1987]). However, evidence of uncharged crimes or acts may be admissible to show, inter alia,the defendant's intent to commit the charged act (see People v Alvino, 71 NY2d at241-242). Here, the evidence of the defendant's alleged prior drug sale was properly admitted toshow the defendant's intent to commit the charged offense (see People v Brown, 4 AD3d 156, 157 [2004]; People vRosello, 298 AD2d 212 [2002]; see also People v Cain, 193 AD2d 810 [1993]).Rivera, J.P., Santucci, Dickerson and Belen, JJ., concur.
[Recalled and vacated by 63 AD3d 959.]