| People v Blinker |
| 2011 NY Slip Op 00231 [80 AD3d 619] |
| January 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EdwardBlinker, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, andSullivan & Cromwell LLP [Lisa M. White], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.),rendered September 11, 2007, convicting him of criminal possession of a controlled substance in thethird degree, criminal possession of a controlled substance in the fourth degree, criminal possession of aweapon in the third degree (two counts), criminally using drug paraphernalia in the second degree, andunlawful possession of marijuana, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of those branches of the defendant's omnibus motion which were tosuppress physical evidence seized after his arrest on July 12, 2006, and his statement to lawenforcement officials.
Ordered that the judgment is affirmed.
The defendant contends that the Supreme Court erred in denying that branch of his motion whichwas to suppress the physical evidence seized from his person after his arrest on July 12, 2006, on thebasis that the police officer lacked probable cause to arrest him. The police officer, an experienced andspecially trained member of the Street Narcotics Enforcement Unit, testified at the suppression hearingthat he observed the exchange of money and a small object between the defendant and anotherindividual at a location known for high drug activity. The police officer also testified that when he madeeye contact with the defendant, the defendant walked between two parked cars and made a downwardthrowing motion, discarding a small object underneath the bumper of a car. The police officer retrievedthe object, which appeared to be a twist of crack cocaine.
Contrary to the defendant's contention, the hearing court did not err in denying that branch of hisomnibus motion which was to suppress physical evidence seized after his arrest on July 12, 2006. "Ona motion to suppress physical evidence, the People bear the burden of going forward to establish thelegality of police conduct in the first instance" (People v Hernandez, 40 AD3d 777, 778 [2007]). The credibilitydeterminations of the hearing court "are entitled to great deference on appeal and will not be disturbedunless clearly unsupported by the record" (People v Baliukonis, 35 AD3d 626, 627 [2006]; see People vProchilo, 41 NY2d 759, 761 [1977]; People v Castro, 73 AD3d 800 [2010]; People v Lynch, 63 AD3d 959 [2009];People v Shackleford, 57 AD3d578 [2008]; People v Whyte, 47AD3d 852 [2008]). Here, the police officer's testimony was [*2]not incredible or otherwise unworthy of belief. Further, the evidencepresented at the suppression hearing was sufficient to support the hearing court's conclusion that thepolice officer had probable cause to arrest the defendant on July 12, 2006, and, therefore, the searchincident to that arrest was lawful (see People v Jones, 90 NY2d 835, 837 [1997]; Peoplev McRay, 51 NY2d 594, 601-602 [1980]; People v Williams, 69 AD3d 663 [2010]; People v Powell, 32 AD3d 544[2006]). Accordingly, we discern no basis to disturb the hearing court's determination denying thatbranch of the defendant's omnibus motion which was to suppress physical evidence seized after hisarrest on July 12, 2006.
The defendant's contentions regarding the prosecution's opening and closing statements areunpreserved for appellate review (see CPL 470.05 [2]; People v Dunn, 54 AD3d 871 [2008]). In any event, the challengedremarks constituted fair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109[1976]), were responsive to arguments presented in the defense counsel's summation (see People vGalloway, 54 NY2d 396, 400-401 [1981]; People v Brown, 60 AD3d 962 [2009]; People v Baker, 251AD2d 592 [1998]), or were harmless (see People v Crimmins, 36 NY2d 230, 240-241[1975]).
The defendant's remaining contentions are without merit. Skelos, J.P., Dickerson, Belen and Lott,JJ., concur.