| People v Williams |
| 2010 NY Slip Op 00189 [69 AD3d 663] |
| January 5, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jimmy Williams, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Kristina Sapaskis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered November 30, 2007, convicting him of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the seventh degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the evidence presented at the suppression hearingwas sufficient to establish that a police officer had probable cause to arrest the defendant and,therefore, the search incident to that arrest was lawful (see People v Jones, 90 NY2d 835,837 [1997]; People v McRay, 51 NY2d 594 [1980]). The subject drug transactionoccurred at approximately 9:00 p.m. in a dirt area under the Whitestone Expressway"sandwiched" between two service roads, an area the arresting officer described as a fenced-in orgated area not open to the public. The arresting officer observed that the subject area was litteredwith drug paraphernalia and packaging. The area was known to the narcotics enforcement unit ofwhich the arresting officer was then a part as "Crack City." The arresting officer observed thedefendant hand a small object, one-third of an inch by one-third of an inch in size, to anotherperson in exchange for currency.
"[V]arious factors, when combined with the street exchange of a 'telltale sign' of narcotics,may give rise to probable cause that a narcotics offense has occurred. Those factors relevant toassessing probable cause include the exchange of currency; whether the particular communityhas a high incidence of drug trafficking; the police officer's experience and training in druginvestigations; and any 'additional evidence of furtive or evasive behavior on the part of theparticipants' " (People v Jones, 90 NY2d at 837, quoting People v McRay, 51NY2d at 601, 604). A "telltale sign" such as the exchange of a glassine envelope, however, is notan indispensable prerequisite to probable cause (see People v Jones, 90 NY2d at 837).Therefore, notwithstanding that the arresting officer at bar did not further describe the smallobject passed by the defendant in exchange for currency, an inference of probable cause still mayproperly be drawn when there are present other indicia of a drug transaction (id.; seePeople v McRay, 51 NY2d at [*2]604; see e.g. People v McCants, 67 AD3d821 [2009]; People v Graham, 211 AD2d 55, 58-59 [1995]). Thus, "[i]n a probablecause analysis, the emphasis should not be narrowly focused on a recognizable drug package orany other single factor but on an evaluation of the totality of circumstances, which takes intoaccount the realities of everyday life unfolding before a trained officer who has to confront, on adaily basis, similar incidents" (People v Graham, 211 AD2d at 58-59 [internal quotationmarks omitted]).
Here, the exchange occurred in an area rampant with narcotics activity, the character ofwhich was known to the arresting officer, a qualified observer (see People v McRay, 51NY2d at 598, 604; People v McCants,67 AD3d 821 [2009]; People v Shaw, 193 AD2d 390, 391 [1993]), and thearresting officer also observed that the area was littered with drug paraphernalia (see Peoplev McRay, 51 NY2d at 606; People v Bittner, 97 AD2d 33, 37 [1983]). Further, thesubject area was not merely a neighborhood known for drug sales where a resident was lawfullypresent, but was under an expressway in an area where the defendant and others were notauthorized to be (cf. People v Wilson, 175 AD2d 15, 18 [1991]). Moreover, contrary tothe defendant's contention, the fact that the police may have used the drug arrests as a pretext forremoving homeless people from the subject area has no effect on the legality of the arrest (see People v Hampton, 44 AD3d1071, 1072 [2007]; see also Peoplev Amuso, 44 AD3d 781, 783 [2007]; People v Lightfoot, 22 AD3d 865, 866 [2005]).
Thus, the motion court properly drew an inference of probable cause from the testimony ofthe arresting officer, a qualified observer, which provided the requisite assurance that theobserver had witnessed an illicit dealing rather than an innocent encounter (see People vMcRay, 51 NY2d at 604). Therefore, the motion court properly denied suppression.
Viewing the evidence in the light most favorable to the People (see People v Cabey,85 NY2d 417, 420 [1995]), there was legally sufficient evidence from which a juryreasonably could infer that the small object which the police officer observed the defendant passto another person, upon receipt of money, was a packet of illegal narcotics (see People vWright, 209 AD2d 562 [1994]; People v Floyd, 177 AD2d 310 [1991]), constitutinga criminal sale of a controlled substance in the third degree (see Penal Law §220.39 [1]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Skelos, J.P., Dickerson, Eng and Sgroi, JJ., concur.