| People v Rogers |
| 2010 NY Slip Op 01836 [71 AD3d 457] |
| March 9, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Reggie Rogers, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Hilary Hassler of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J., at suppressionhearing; Daniel P. FitzGerald, J., at plea and sentence), rendered June 30, 2008, convictingdefendant of criminal sale of a controlled substance in the third degree, and sentencing him, as asecond felony drug offender, to a term of 3½ years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). The arresting officer's testimony that defendant wasthe only person on one side of a particular block at a particular moment was not implausible. Inany event, in this case probable cause does not turn on whether defendant was literally the onlyperson present, or instead was merely the only person who met the undercover officer'sdescription. In either case, the description, which included defendant's "furry" jacket, wassufficiently specific, given the close spatial and temporal proximity between the sale and thearrest, to provide probable cause (see e.g. People v Rampersant, 272 AD2d 202[2000], lv denied 95 NY2d 870 [2000]). There was sufficient proximity to make it"highly unlikely that the suspect had departed and that, almost at the same moment, an innocentperson of identical appearance coincidentally arrived on the scene" (People v Johnson, 63 AD3d 518[2009], lv denied 13 NY3d 797 [2009]). Concur—Tom, J.P., Friedman, Sweeny,Nardelli and Abdus-Salaam, JJ.