| People v Dowling |
| 2010 NY Slip Op 06114 [75 AD3d 838] |
| July 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RooseveltDowling, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J.P. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered February 27, 2009, upon a verdict convicting defendant of the crime of criminal sale ofa controlled substance in the third degree.
On February 7, 2008, members of the City of Albany Police Department CommunityResponse Unit were conducting surveillance of a house known for drug activity on ClintonAvenue from the second-floor bay window of an abandoned house across the street. Theyobserved a white SUV driven by defendant stop almost in front of the house in which they werelocated and, one by one, several individuals briefly entered the vehicle on the passenger side.From relatively close range, the officers observed each individual give defendant money andreceive what appeared to be crack cocaine. They radioed a description of one suspected buyer tothe officers working on the catch team. A catch team officer around the corner from thetransaction stopped the alleged buyer, who was found to be in possession of a cut-off baggiecontaining a substance that field tested positive for crack cocaine. Defendant drove away, pulleda U-turn and was followed by the surveillance team's supervising sergeant, who stopped theSUV and arrested defendant, the sole occupant. A knife was found on the back seat of the SUV,but no cash or drugs. Defendant was charged with criminal sale of a controlled substance in thethird degree and, as later reduced, criminal possession of a weapon in the fourth degree. After aMapp hearing, County Court concluded that police had probable cause to arrestdefendant, and his [*2]motion to suppress the knife was denied.Following a jury trial, the court dismissed the weapon possession count and defendant wasconvicted of the drug sale count and sentenced to a prison term of eight years with three years ofpostrelease supervision. Defendant now appeals, and we affirm.
Defendant's challenge to the legal sufficiency of the evidence is unpreserved, given hisgeneral motion to dismiss (see People v Gray, 86 NY2d 10, 20 [1995]). He alsochallenges the verdict as against the weight of the evidence and, thus, we consider witnesscredibility and the evidence as to the elements of the crime to ascertain if the People "prove[d]the elements of the crime beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349 [2007]; see People v Caston, 60 AD3d1147, 1148-1149 [2009]).
The trial testimony established that the officers conducting surveillance with binoculars fromthe nearby building had an unobstructed view and observed a series of transactions in whichdefendant, who remained seated in the SUV with the interior light on, sold what appeared to becrack cocaine for cash. One of the officers radioed a description of one of the suspected buyersto his waiting fellow officers, who stopped that individual within one to two minutes anddetermined that he in fact possessed prepackaged crack cocaine. The supervisor, also usingbinoculars, separately observed the transactions from down the block.
Considering the foregoing evidence in a neutral light and weighing the conflicting testimony,even if a contrary verdict would have been reasonable, the weight of the credible evidence fullyjustified the jury's verdict (see People vRomero, 7 NY3d 633, 643 [2006]; People v Bleakley, 69 NY2d 490, 495[1987]). Defendant's activity was observed at all times by one or more officers on thesurveillance team, and the buyer was found in possession of the baggie of crack cocaineimmediately after defendant's sale, leaving no ambiguity regarding defendant's connection to thatsale. The officers' inability to recover any money or drugs on defendant's person, in the SUV orin the area, despite a search, was sufficiently explained by the supervisor's testimony thatdefendant had the opportunity, not observable to police, to toss items out the SUV window whenhe quickly departed the scene, prior to being stopped, and that the windy weather conditionswould have blown away paper or light baggies of cocaine. Further, defendant's challenge to thelegal sufficiency of the evidence before the grand jury is precluded, given his conviction basedupon what we view to be legally sufficient trial evidence (see CPL 210.30 [6]; People v Smith, 4 NY3d 806, 808[2005]).
Next, County Court correctly ruled that the People had met their burden of proving, at theMapp hearing, that police had probable cause to stop the SUV and arrest defendantwithout a warrant, because the arresting officer had knowledge of facts and circumstances"sufficient to support a reasonable belief that an offense ha[d] been or [was] being committed"(People v Bigelow, 66 NY2d 417, 423 [1985]; see CPL 140.10; People vMaldonado, 86 NY2d 631, 635 [1995]). Under the fellow officer rule, the arresting officerneed not have had personal knowledge to establish probable cause but, rather, is entitled to actupon information received from another officer "provided that the police as a whole were inpossession of information sufficient to constitute probable cause to make the arrest" (Peoplev Ramirez-Portoreal, 88 NY2d 99, 113 [1996] [internal quotation marks and citationomitted]; see People v Bell, 5AD3d 858, 859 [2004]). Here, the evidence at the suppression hearing established that thearresting officer, relying upon his own observations of defendant and information imparted tohim by other team members, including the positive field test on the substance possessed by thebuyer, had reason to believe that defendant had sold cocaine and, thus, probable cause to arresthim. Suppression was [*3]properly denied.
We are also unpersuaded by defendant's claim to being denied meaningful representation(see People v Baldi, 54 NY2d 137, 147 [1981]). A review of the record reveals thatcounsel pursued pretrial motions and a cogent trial strategy challenging the officer's ability toobserve defendant's conduct, and focusing on the lack of any recording of the transaction orbuyer testimony and the fact that no drugs or money were found on defendant's person or in theSUV. Counsel also secured dismissal of the weapon count. Contrary to defendant's claim, we donot find that defendant would have been entitled to a missing witness charge related to theapprehended buyer found in possession of cocaine sold by defendant given—among otherfactors—the testimony of one of the officers that a warrant for his arrest had been issued,but that the police department had been unable to locate him despite diligent search efforts(see People v Savinon, 100 NY2d 192, 197 [2003]; People v Gonzalez, 68 NY2d424, 427-429 [1986]; People vTurner, 73 AD3d 1282, 1284 [2010]; cf. People v Onyia, 70 AD3d 1202, 1204-1205 [2010]). Thus, wecannot conclude that counsel's failure to request this charge prejudiced defendant (see People v Hebert, 68 AD3d1530, 1533 [2009], lv denied 14 NY3d 841 [2010]; People v Peake, 14 AD3d 936,937 [2005]).
Finally, we do not find that defendant's eight-year prison sentence, which is on the lower endof the permissible statutory range for a second felony drug offender previously convicted of aviolent felony (first degree assault) (see Penal Law § 70.70 [4] [b] [i] [6 to 15years]), is harsh and excessive.
Lahtinen, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.