| People v Lynch |
| 2009 NY Slip Op 05155 [63 AD3d 959] |
| June 16, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JulioLynch, Appellant. |
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Motion by the appellant for leave to reargue an appeal from a judgment of the SupremeCourt, Kings County (McKay, J.), rendered February 7, 2006, which was determined by decisionand order of this Court dated April 8, 2008, and cross motion by the respondent to amend therecitation of facts in our order determining the appeal.
Upon the papers filed in support of the motion and the cross motion and the papers filed inopposition and relation thereto, it is
Ordered that the motion and cross motion are granted; and it is further,
Ordered that upon reargument, the decision and order of this Court dated April 8, 2008(People v Lynch, 50 AD3d 824 [2008]), is recalled and vacated, and the followingdecision and order is substituted therefor: 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 inthe third 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 drove around theblock, stopped that individual, and recovered from him a white rocky substance thatappeared to be cocaine. The officers then returned to the location where they had observed thedefendant engage in the original transaction, whereupon they observed the defendant engage inan apparent drug transaction with a woman by giving her an object that appeared to be narcotics.The testifying officer then arrested the defendant, and recovered from his hands a plasticpackage containing a substance that was later determined to be narcotics.
The defendant contends that the Supreme Court erred in denying that branch of his [*2]motion which was to suppress the physical evidence seized uponhis arrest, since the arresting officer's testimony as to his grounds for probable cause wasincredible as a matter of law. In determining whether a hearing court properly determined that anarrest was supported by probable cause, the resolution of " 'issues of credibility [is] primarily forthe trial court [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 AD3d 830 [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 recordto disturb 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 AD3d156, 157 [2004]; People v Rosello, 298 AD2d 212 [2002]; see also People v Cain,193 AD2d 810 [1993]). Rivera, J.P., Santucci, Dickerson and Belen, JJ., concur.