| People v Strothers |
| 2011 NY Slip Op 06200 [87 AD3d 431] |
| August 11, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v HeathStrothers, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (William A. Wetzel, J.), renderedDecember 9, 2008, convicting defendant, after a jury trial, of conspiracy in the second degree andcriminal possession of a controlled substance in the first and third degrees, and sentencing him,as a second felony offender, to an aggregate term of 12 years, held in abeyance, and the matterremanded to the Supreme Court for a de novo combined Mapp/Dunaway/Huntleyhearing.
At the time of his arrest, defendant was the driver of a black Jeep. The two passengers in thevehicle were codefendants Jose Concepcion and Edwin Reyes. For the previous two months,Concepcion had been under surveillance by a 14-member team of the New York DrugEnforcement Task Force, which had secured wiretaps on several cell phones used byConcepcion. Reyes was one of the people identified through the wiretaps, but defendant was not.The Task Force had concluded that the people on the cell phone conversations were members ofa large-scale drug-trafficking operation. Indeed, approximately two months prior to defendant'sarrest, based on information procured from the wiretap, the team stopped a tractor trailer inRockland County, New York, and seized $1,355,860 in cash.
In the hours prior to defendant's arrest, the Task Force listened to cell phone conversationsbetween Concepcion and others and realized that a transaction was planned for 12:30 a.m. thenext morning in the Hunts Point section of the Bronx. Based on this, the agents anticipated that atractor trailer containing 50 kilos of cocaine would exit I-87 at Exit 1 and that Concepcion wouldbe there to meet it. The Task Force staked out the Hunts Point neighborhood, and, continuing tomonitor calls made from Concepcion's cell phone, spotted the tractor trailer and the Jeep, both ofwhich they pulled over. Defendant and his passengers were immediately arrested. The agentsseized five cell phones from the Jeep, including the one that they had been monitoring. They alsoseized $2,220 in cash from defendant, as well as automobile insurance and registration in thename of defendant's wife.
Defendant moved to suppress the evidence seized from him based on what he contended waslack of probable cause to arrest him. The court conducted a joint Mapp/Dunaway/Huntleyhearing which also addressed the suppression motions of Reyes and another codefendant, Elvin[*2]Concepcion. The hearing commenced with the testimony ofSpecial Agent Jarod Forget of the Drug Enforcement Agency, who led the Task Force that hadarrested defendant. At the moment Forget began testifying, defendant's counsel was not present.Instead, he was covering an appearance in another county. Although the court was aware ofcounsel's absence, and that defendant would be unrepresented, it ordered the hearing to proceed.More than halfway through Agent Forget's direct testimony, defendant's counsel appeared andapologized for his tardiness. To that point, Agent Forget's direct testimony had covered personalbackground information, general information concerning how wiretap surveillance is conducted,and some specific information regarding the events in question. Defendant's counsel was able toconduct a cross-examination of Agent Forget, and he was present for the testimony of both of thePeople's other witnesses, who were also on the scene at the time of defendant's arrest.
The court denied the suppression motion. It found that all three of the witnesses werecredible and that they established probable cause for defendant's arrest. Defendant proceeded totrial. In addition to the items seized from the Jeep, the People introduced evidence discoveredduring the investigation subsequent to the arrests. This included an American Express billbelonging to Concepcion which revealed that, after the Task Force had seized cash from thetractor trailer in Rockland County, Concepcion had paid for two round-trip airline tickets forhimself and defendant from New York to Orlando, Florida. The bill further led the agents tolearn that Concepcion rented a car in Orlando, and drove it 2,130 miles in three days.Furthermore, telephone records showed that one of the cell phones found in the Jeep, which wasowned by Concepcion but had not been tapped, established that defendant and Concepcion hadcalled one another over 330 times.
The right to counsel for an accused person is constitutionally guaranteed at trial and at othercritical proceedings such as a pretrial suppression hearing (see People v Carracedo, 214AD2d 404 [1995]). The deprivation of counsel has been described as absolute and harmful per se(see People v Margan, 157 AD2d 64, 65-66 [1990]). Because of the sanctity of the rightto counsel, we need not engage in an analysis as to what transpired in the case during counsel'sabsence and whether the evidence received, or matters discussed with the court, were material tothe defense. " 'The right to have the assistance of counsel is too fundamental and absolute toallow courts to indulge in nice calculations as to the amount of prejudice arising from its denial' "(id. at 66, quoting Glasser v United States, 315 US 60, 76 [1942]). Thus, wereject the People's argument that the deprivation here can be overlooked because defendant wasunrepresented for only a small portion of the cumulative testimony and that the portion counselmissed covered only background and general information.
The fact that the right to counsel is absolute also renders baseless several of the otherarguments advanced by the People. For instance, it is of no moment that counsel, once he didarrive for the hearing, did not preserve the objection that it began without him. Where counsel isnot present when the deprivation occurs and so cannot lodge an objection, the issue can be raisedfor the first time on appeal (Margan at 70). The People offer no support for their positionthat the presence of codefendants' counsel, whose clients' interests they allege were aligned withdefendant's, was an adequate substitute. Evidence that defendant expressly agreed to therepresentation and waived any conflict, as would be required, is completely absent from thisrecord (cf. People v Torres, 224 AD2d 269, 270 [1996], lv denied 88 NY2d 943[1996]).
We also reject the People's contention that the deprivation of counsel here was harmless. TheCourt of Appeals has held that, where a defendant is deprived of counsel at a suppression [*3]hearing, the error cannot be deemed harmless even if one canconclude that the outcome of the hearing would have been the same had counsel been present (see People v Wardlaw, 6 NY3d556, 559 [2006]). In Wardlaw, the Court of Appeals did state that it is relevant toconsider "what impact, if any, the tainted proceeding had on the case as a whole"(id. [emphasis added]). However, in holding that the deprivation of counsel inWardlaw was harmless, the Court emphasized the "truly overwhelming" evidence of thedefendant's guilt of a rape charge, which was DNA recovered from semen found in the victim'svagina (id. at 560). Here, evidence of defendant's guilt is much more equivocal.Assuming that defendant would have prevailed at the suppression hearing, the evidencerecovered from Concepcion after defendant's arrest linking defendant to the drug transaction atissue would be circumstantial. The facts that defendant traveled with Concepcion and hadmultiple telephone conversations with him do not, by themselves, establish his participation,much less constitute "truly overwhelming" evidence of guilt (id.).
The dissent asserts that we "conflate[ ]" the deprivation of counsel at a pretrial hearing withthe deprivation of counsel at trial. We do no such thing. The result reached here is consistentwith how the Court of Appeals has treated the former situation in that we have not reverseddefendant's conviction, as is done in the latter, but merely ordered a new suppression hearing.The dissent acknowledges that this is the appropriate remedy, and we do not disagree that there isan exception for cases in which there is "truly overwhelming" evidence of guilt (id.).However, we strongly disagree with the dissent's view that, even without the seized evidencewhich was the subject of the suppression hearing, "it is beyond reasonable doubt" that defendantwould have been convicted, to say nothing of whether the evidence reaches the Wardlawstandard. While it may be possible to infer from the remaining evidence that defendant andConcepcion had a business relationship, it cannot be said, as it must in a case involvingcircumstantial evidence only, that the evidence would have "exclude[d] to a moral certainty" thepossibility that defendant was not a participant in the drug transaction at issue here (People vBarnes, 50 NY2d 375, 380 [1980] [internal quotation marks omitted]).
The dissent's arguments that defendant's failure to preserve his objection to the absence ofcounsel is fatal, or alternatively, that he was not deprived of counsel at all, also fall flat.Regarding the former issue, the dissent relies on People v Narayan (54 NY2d 106[1981]). In that case, the Court of Appeals held that the defendant failed to preserve an objectionto the trial court's having prohibited defense counsel from conferring with his client concerningthe testimony the defendant had offered that day in court. However, that was because, as theCourt stated, "[A]n objection voiced by counsel . . . when the trial court firstuttered its prohibition against consultation between attorney and client, might well haveresulted in a change of the Trial Judge's ruling and total avoidance of interference withdefendant's constitutional claim" (54 NY2d at 113 [emphasis added]). Here, defense counsel wasobviously not in a position to voice an objection when the trial court decided to proceed withouthim. Moreover, even if, as the dissent theorizes, Narayan could be read to require alawyer who has missed part of a proceeding to object when he finally arrives in court, such a rulewould not apply under the circumstances of this case. The dissent's surmise that the court mayhave restarted the hearing or allowed readback of the testimony is not consistent with the court'srefusal to wait for defense counsel to begin the hearing, even after the prosecutor asked the court,"[D]on't we need to wait for [counsel] . . . [b]ecause the Dunaway does pertain tohim?"
Further, the dissent's position that defendant "was not unrepresented for testimony [*4]appertaining to him" is simply inaccurate. All of thetestimony that counsel missed related to defendant because it was elicited by the People for thepurpose of establishing that, even if only in general terms, the police employed proper proceduresand techniques in developing probable cause to arrest defendants. Again, given the fundamentalnature of the right to counsel, it is not for us to separate out the testimony that was truly pertinentto defendant from that which one could argue was not important enough to require that counselbe there to hear it (see People v Margan, 157 AD2d at 66). In addition, it is impossiblefor us to determine whether testimony elicited before counsel arrived could have been used byhim as fodder for effective cross-examination that would have changed the outcome of theproceeding for his client.
For all of the foregoing reasons, the court's decision to proceed with the suppression hearingin the absence of defendant's counsel was a fundamental error that entitles defendant to a newhearing. Concur—Mazzarelli, J.P., Moskowitz and RomÁn, JJ.
Andrias and Catterson, JJ., dissent in a memorandum by Catterson, J., as follows: I mustrespectfully dissent. In my opinion, remanding for a de novo suppression hearing is unwarrantedbecause (a) the defendant did not preserve the issue of the alleged pretrial violation of his right tocounsel; (b) he effectively was accorded a de novo hearing when his attorney eventually arrivedin the courtroom; and (c) the alleged deprivation was harmless error. In my view, suppression ofthe evidence recovered from the stop could not have prevented the jury from reaching a guiltyverdict.
The defendant was arrested after driving his black Jeep to a drug transaction at Hunts PointMarket in the Bronx in April 2007. The transaction involved 50 kilos of cocaine for a purchaseprice of approximately $1.2 million. Two passengers in the Jeep were codefendants, JoseConcepcion and Edwin Reyes who were the subjects of a wiretap investigation by a drugenforcement task force. As a result of intercepted communications and surveillance which led thetask force to the location of a drug transaction, the task force arrested the defendant, his twopassengers, the driver of a tractor trailer carrying the cocaine, and the driver of a white vancarrying more than $1 million in cash.
The defendant was charged, inter alia, with conspiracy in the second degree (Penal Law§ 105.15) and criminal possession of a controlled substance in the first and third degrees(Penal Law § 220.21 [1]; § 220.16 [1]). He moved to challenge the probable causefor the stop of his Jeep, and to suppress property owned by him and recovered from his personand from the Jeep at a joint hearing with codefendant Reyes. The challenged property includedcell phones, $2,220 in cash, and the registration and auto insurance documents in the name ofdefendant's wife. He also moved to suppress a statement he made to the lead investigator of thetask force.
When the defendant's attorney disobeyed the court's order to appear for the hearing at 9:30a.m., the court allowed the hearing to start without defense counsel. Codefendant Reyes waspresent with two attorneys when the prosecutor called the first witness, Jarod Forget, a specialagent and the lead investigator on the case. Subsequently, the court denied the defendants'motions for suppression, Reyes and Concepcion pleaded guilty, and the defendant was convictedafter a jury trial. He now appeals on the grounds that inter alia his fundamental right to counsel atthe suppression hearing was violated, and he is therefore entitled to a de novo [*5]suppression hearing.
As a threshold matter, I believe the majority's holding is based on an analysis that conflatestwo distinct concepts in criminal law: a defendant's fundamental right to a fair trial and adefendant's right to counsel at pretrial proceedings. Thus, the majority reaches the conclusion thata "fundamental error" occurred. The majority's references to the "sanctity" of the right to counselrely on Second Department case law (People v Margan, 157 AD2d 64 [1990]), which inturn cites to the legal authority of the United States Supreme Court (Glasser v UnitedStates, 315 US 60 [1942]). The majority therefore reiterates that the right to counsel is"constitutionally guaranteed;" that deprivation of counsel is "harmful per se;" and thus, that theright is "too fundamental and absolute to allow courts to indulge in nice calculations as to theamount of prejudice arising from its denial." (Glasser, 315 US at 76.)
These observations, however, have nothing to do with the issue before us. In its seminalcases on a defendant's right to counsel, the Court of Appeals has drawn a clear distinctionbetween those instances where deprivation of counsel is an error "so serious" that it operates todeny a defendant's fundamental right to a fair trial (People v Hilliard, 73 NY2d 584,586-587 [1989]), and those cases where a defendant is denied the assistance of counsel in apretrial proceeding, specifically a suppression hearing. (See People v Wardlaw, 6 NY3d 556 [2006]; People vCarracedo, 89 NY2d 1059 [1997]; People v Slaughter, 78 NY2d 485 [1991].) In theformer line of cases, convictions are reversed and new trials granted without a court enunciatingwhether the error contributed to conviction. (See Hilliard, 73 NY2d at 586, citingPeople v Crimmins, 36 NY2d 230, 238 [1975]; People v Felder, 47 NY2d 287[1979].) In the latter line of cases, deprivation of counsel does not always mandate such aremedy.
In Wardlaw, the Court held that the right to counsel is "indeed very important" butthat "deprivations of important constitutional rights do not require a remedy when it is clearbeyond reasonable doubt that they did not contribute to a conviction. There are rare exceptions,when a defendant has been denied his fundamental right to a fair trial, but a violation of theright to counsel at a pretrial hearing is not among them." (Wardlaw, 6 NY3d at 561[internal quotation marks and citations omitted; emphasis added].)
The Wardlaw Court observed that, "ordinarily" the remedy for such a violation at asuppression hearing requires a remand for a de novo hearing, and a new trial only if a denovo suppression hearing results in a finding that the evidence should have been suppressed.(Wardlaw, 6 NY3d at 559.) However, the Court dispensed with automatic remand for ade novo hearing where "it is clear, beyond reasonable doubt, that the outcome of the suppressionhearing [at which the violation occurred] could not have affected the outcome of the trial."(Wardlaw, 6 NY3d at 558.) Thus, the Court held that deprivation of counsel at a pretrialhearing was subject to a harmless error analysis. (Id. at 559 [remedy to which a defendantis entitled depends on what impact if any, the tainted proceeding had on the case as a whole],citing People v Wicks, 76 NY2d 128 [1990] [harmless error analysis applicable wheredefendant was not provided counsel at a [*6]preliminaryhearing].)
Moreover, while not "depreciating the stature of the constitutionally protected right of acriminal defendant effectively to confer with counsel," the Court also has found that there areoccasions when the violation of a right to counsel requires an objection by defendant to preservethe issue for appellate review. (People v Narayan, 54 NY2d 106, 112 [1981] [wheredefense counsel was ordered not to communicate with defendant while the defendant wastestifying at trial].) The Court stated, "[W]e find no justification for departing from therequirement that trial court error (here interference with [right to counsel]) must be brought to thecourt's attention by protest timely made, at least where counsel acting on defendant's behalf ispresent and available to register a protest and where the error if called to the court's attentionis readily susceptible to effective remedy." (Narayan, 54 NY2d at 112 [emphasisadded].)
Initially then, I dissent from the majority view that preservation is not required in this case.The majority relies on Margan (157 AD2d at 70) which distinguishes Narayan asstanding for the oxymoronic-like proposition that counsel has to be "actually present" at the timean erroneous ruling respecting right to counsel is made in order to object for the record. InMargan, the People commenced the direct examination of the first State witness at trialbefore defense counsel arrived in court. Hence, the majority observes it is analagous to this casewhere counsel had not yet arrived for the hearing, and so could not lodge an objection.
Setting aside the fact that the Second Department holding in Margan is not bindingon this Court, the facts, sparse as they are, suggest that the case involved a sole defendant facinga jury trial. It appears, therefore, that the violation occurred under circumstances where there was"no opportunity adequately to cure the prejudice it caused." (Margan, 157 AD2d at 70.)
In my opinion, the majority interprets the requirement for counsel's presence at the verymoment of deprivation too literally. In fact, the Narayan Court's holding was broader inthat it stated that appellate review was not secured "in light of counsel's acquiescence at atime when correction was possible." (54 NY2d at 113 [emphasis added].)
In this case, there is no dispute that defense counsel acquiesced in the court's commencementof the hearing in his absence; he arrived after the hearing had started, and not only failed toobject, but apologized and thanked the court as the defendant was called from the public gallery.Nor do I believe there can be any dispute that, upon his arrival, the error was still "susceptible to[an] effective remedy." For example, the court could have asked the court reporter for a readbackof the proceeding or restarted the hearing. The hearing was a bench proceeding, and not a jurytrial; and the deprivation was confined to 38 pages of transcript out of an eventual 210.[FN*]The first witness, who had taken the stand on page 15, was still being [*7]questioned by the People when defense counsel arrived on page 53.
I fail to see the relevance of the majority's view that surmising about a remedy is inconsistentwith the circumstances in this case because the court was adamant in its refusal to wait forcounsel, and therefore an objection would have been futile. It is well established that an objectionis made in order to bring the alleged error to the court's attention in order to give the court anopportunity to correct it at a point when the error is capable of correction without a vastwaste of judicial resources. (People v Gray, 86 NY2d 10 [1995].) Certainly, it is not up todefense counsel to make an assessment of how the objection will be received, and what the oddsare that the court will agree to correct the alleged error, before deciding whether to object at all.This would turn the preservation requirement into nothing more than a mental exercise fordefense counsel, necessarily leading to the appellate argument of, "well I thought about it, but. . . ."
In any event, even if I was inclined to review the issue in the interest of justice, nevertheless,I would decline to remand for a de novo hearing. In my opinion, what transpired after defensecounsel's arrival was, in fact, a de novo suppression hearing, notwithstanding that it occurredwithout defense counsel raising any objection.
The People's argument that the defendant was "unrepresented for only a small portion of thecumulative testimony" misses the point. Precedent renders it impermissible to calculate whetherpresence of counsel would have changed the result of the proceeding. (SeeWardlaw, 6 NY3d at 559.) In my opinion, a more significant finding, upon a careful reviewof the record, is that the defendant was not unrepresented for testimony appertaining to him.
The People, with the court's permission, refrained from asking any specific questionsappertaining to the defendant during defense counsel's absence. Any information imparted aboutdefendant as a result of questions asked about codefendant Reyes was repeated after defensecounsel's arrival.
On page 25, after asking Special Agent Forget some general questions about surveillance,wiretap investigations and drug organizations, the People began a line of questioning about thenight of the arrests. Thus, the People elicited answers as to who was arrested from the black Jeep(Jose Concepcion, Reyes, and the defendant) and what property was recovered from the Jeep(five cell phones, bills, parking ticket, set of keys, automobile insurance and registration in thename of defendant's wife.) Of the five cell phones seized, one belonged to Concepcion and wasthe phone that was intercepted by the task force on the way to the drug transaction.
On page 45, the People elicited a series of answers establishing that the task force had neverintercepted defendant on a wiretap call, and had never identified defendant prior to his arrest.Only one answer (to the question do you see any of the defendants arrested on April 6th?)resulted in a positive identification of the defendant in the courtroom. On page 46, the prosecutorasked the court if she could "skip just the Huntley with respect to [the defendant] at this pointbecause [defense counsel] is not here?"
Defense counsel arrived on page 53. On page 68, with Special Agent Forget still beingquestioned, the prosecutor returned to earlier testimony, stating: "I'm going to go back throughand ask you now that [defense counsel] has joined us some questions with respect to [thedefendant]."
Whereupon, the People elicited for a second time the circumstances surrounding the arrest ofthe defendant (he was the driver of the Jeep carrying codefendants Jose Concepcion and Reyes);for the second time the People established that the Jeep the defendant was driving was [*8]registered to his wife. The People then repeated the questions as towhether defendant had ever been intercepted over a wiretap, or identified as a member of thedrug organization prior to the night of the arrest. Then, the People for the first time asked aboutthe statement that defendant had made to Forget. According to the testimony, the defendant hadacknowledged he was driving the Jeep, and said that he was on his way to a strip club.
On page 72, when Reyes's attorney interjected to inquire about the report the witness wasusing to refresh his recollection as to defendant's statement, the court commented to Reyes'sattorney: "this has no bearing on your client . . . if I were to compartmentalize it,this is a Huntley hearing for [the defendant]." On page 74, codefendant Reyes's attorneycommenced cross-examination of Forget. The cross-examination returned to statements thatForget had made in defense counsel's absence about experience, training and his responsibilitiesas lead investigator.
On page 137, defense counsel commenced his cross-examination of the special agent bystating: "I represent Mr. Strothers . . . I know I came in late. Sorry about that. I'll trynot to reiterate too much." Whereupon, he too asked about Forget's experience and expertise; healso established, as the People had already done, that prior to the arrest, the defendant was notunder surveillance, and that his cell phone had not been tapped. Defense counsel also establishedthat there had been no surveillance of the Jeep, and no one had run the license plates of the Jeep;that there were no drugs or massive bundles of cash recovered from the Jeep, and that "in sumand substance, [the defendant] was arrested because he was the driver of the black Jeep."
To the extent that the defendant's position at the hearing, at trial and on appeal, is that thepolice had no probable cause to arrest him after the stop of the Jeep based merelyon his presence at the scene, the testimony relating to that was fully reiterated at the hearing anddefense counsel had full opportunity to cross-examine on it.
Defense counsel did not raise any objection to the commencement of proceedings at the endof the hearing, nor did he claim that the defendant had been prejudiced in any way. Nor did herevisit the issue subsequently at trial. In my opinion, the People rely correctly on People vDekle (56 NY2d 835 [1982]), to assert that allowing the defendant to raise the issue now,two years after trial would "encourage gamesmanship and waste judicial resources." (56 NY2d at837.)
Finally, the defendant is not entitled to a de novo hearing because the alleged deprivation ofcounsel was harmless error. In my opinion, it is beyond reasonable doubt that the outcome of thesuppression hearing did not contribute to defendant's conviction. A harmless error analysisrequires us to assume arguendo that had defense counsel been present from the beginning of thehearing, the challenged evidence and statement would have been suppressed. (SeeWardlaw, 6 NY3d at 559-560.) The defendant argues that without the personal propertyseized from him and his Jeep, that is, his cell phone and $2,220 in cash, there was nothing to linkhim to Jose Concepcion, the drug kingpin, or to the drug organization and the transaction otherthan that he was driving the Jeep on the night of his arrest.
The majority agrees, observing that the evidence subsequently seized lawfully from JoseConcepcion's house on the day of the arrests, and lawfully obtained phone company records isnot sufficient to link the defendant to the drug transaction. That evidence included phonecompany records for a non-intercepted cell phone belonging to Jose Concepcion, and hisAmerican Express bill. The non-intercepted cell phone showed the defendant as a phone contact[*9]while the American Express bill showed that Concepcion hadpurchased two round-trip tickets to Orlando, Florida for himself and the defendant. Themajority's view is that this circumstantial evidence is not sufficient because "the facts thatdefendant traveled with Concepcion and had multiple conversations with him do not, bythemselves, establish [defendant's] participation [in the drug transaction]." This glosses over afew additional, salient facts that were established at trial. For example, "multiple" in this casemeant more than 330 conversations between Concepcion and the defendant over a two-monthperiod; more than 120 of these calls were placed in the two weeks before thewiretap investigation led the task force to seize $1.4 million destined for an earlier drugtransaction in Rockland County. On the day of the February seizure there were 21calls between Concepcion and the defendant. It is possible that defendant and Concepcionwere merely chatting about sports, or politics, or religion, but common sense precludes such afinding where the evidence proffered at defendant's trial established that Concepcion was a drugkingpin involved in multimillion dollar drug transactions; and that he owned and used multiplecell phones because of the nature of his business. I am persuaded by the People's assertion thatthe sheer volume of calls and their timing point to a business relationship between the defendantand Concepcion. Moreover, the round-trip to Orlando was more than just "defendant travelingwith Concepcion." Evidence proffered by the People at trial established that Concepcion thendrove from Orlando to Houston, Texas, to meet with his cocaine supplier and to settle anoutstanding payment on his portion of the $1.4 million seized in February in Rockland County.Again, phone company records established frequent calls between Concepcion and the defendantbefore and after the road trip, but essentially no phone contact between them during the trip.This, together with proof that Concepcion's rental car was driven more than 2,000 miles in threedays, could lead to a rational conclusion by the jury that the defendant drove with the drugkingpin to meet the drug supplier.
The majority's observation that it is possible to infer that defendant and Concepcion had abusiness relationship, but that the circumstantial evidence here does not exclude to a moralcertainty the possibility that defendant was not a participant in the drug transaction at which hewas arrested, is incomprehensible. In my view, the People did not need the cell phones found inthe Jeep, or the fact that the defendant had $2,220 in cash in his pocket to prove beyond areasonable doubt that the defendant was knowingly involved in the drug transaction on the nighthe was arrested.
For all the foregoing reasons, I would affirm the defendant's conviction without remandingfor a de novo suppression hearing.
Footnote *: Because there is no way toassess how many minutes elapsed before defense counsel's arrival in court, the standardmeasurement here will be in transcript pages. The first witness was called on page 15. Defensecounsel arrived on page 53; hence defense counsel missed 38 pages of court proceeding.