| People v Anderson |
| 2012 NY Slip Op 00383 [91 AD3d 789] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidAnderson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,and Bruce Alderman of counsel; Elisheva Mochkin on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.),rendered July 30, 2009, convicting him of criminal possession of a controlled substance in thethird degree, criminal possession of a controlled substance in the fifth degree, and criminalpossession of a controlled substance in the seventh degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalpossession of a controlled substance in the seventh degree, vacating the sentence imposedthereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
There is no merit to the defendant's claim that the Supreme Court erred in denying thatbranch of his omnibus motion which was to suppress the clear plastic bag of crack cocaine thathe dropped in view of the arresting police officer and the money recovered from his person uponhis arrest. We reject the defendant's contention that it is implausible that a defendant would dropcontraband in front of a police officer (see e.g. People v Berrios, 28 NY2d 361 [1971];People v Sanchez, 248 AD2d 306 [1998]; People v Braxton, 214 AD2d 468, 469[1995]; People v Cuevas, 203 AD2d 88, 89 [1994]; People v Olivo, 189 AD2d786 [1993]; People v Harris, 186 AD2d 390 [1992]; People v Encarnacion, 175AD2d 874 [1991]). There is no basis in the record to conclude that the arresting officer'stestimony was fabricated or conveniently tailored to overcome constitutional objections (cf. Matter of Robert D., 69 AD3d714 [2010]; People v Lebron, 184 AD2d 784, 784-785 [1992]; People vMiret-Gonzalez, 159 AD2d 647, 649 [1990]; People v Quinones, 61 AD2d 765[1978]; People v Sanders, 49 AD2d 610 [1975]). Giving the appropriate weight to thecredibility findings of the hearing court, which had ample opportunity to observe and evaluate thewitness's demeanor while testifying (see People v Wheeler, 2 NY3d 370, 374 [2004];People v Prochilo, 41 NY2d 759, 761 [1977]; People v Cole, 85 AD3d 1198, 1199 [2011]; People v Barley, 82 AD3d 996,997 [2011]), we find no basis to disturb the hearing court's determination to credit the arrestingofficer's testimony at the suppression hearing. Moreover, the discovery of the drugs constitutedprobable cause for the defendant's arrest (cf. People v Leung, 68 NY2d 734, 737 [1986];People v Green, 81 AD2d 621, 623 [1981]), and the lawful custodial arrest justified thecontemporaneous search of the defendant (see New York v [*2]Belton, 453 US 454, 457 [1981]; Chimel v California,395 US 752 [1969]; People v Belton, 55 NY2d 49, 52 [1982]).
We agree with the defendant that the Supreme Court erred in allowing an assistant districtattorney to testify as to why her office chose not to prosecute a person the police arrested with thedefendant for possessing the same bag of crack cocaine. Her testimony that the "facts aspresented to us did not establish that [the other person] possessed any drugs" was the equivalentof an opinion that the defendant was guilty (cf. People v Kozlowski, 11 NY3d 223, 240 [2008], certdenied 556 US —, 129 S Ct 2775 [2009]; People v Ciaccio, 47 NY2d 431,439 [1979]; People v Creasy, 236 NY 205, 221-222 [1923]). Reversal, however, is notwarranted because there was overwhelming evidence of the defendant's guilt and no significantprobability that the improper testimony contributed to his convictions (see People vCrimmins, 38 NY2d 407, 412 [1975]; People v Crimmins, 36 NY2d 230, 241-242[1975]).
The defendant was not deprived of the effective assistance of counsel, as the record revealsthat defense counsel provided meaningful representation (see People v Benevento, 91NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
As the People correctly concede, under the facts of this case, the defendant's conviction ofcriminal possession of a controlled substance in the seventh degree must be vacated and thatcount of the indictment dismissed as an inclusory concurrent count of criminal possession of acontrolled substance in the third degree (see CPL 300.40 [3] [b]; cf. Penal Law§§ 220.03, 220.16 [1]; People v Lee, 39 NY2d 388, 390 [1976]). Dillon,J.P., Dickerson, Eng and Leventhal, JJ., concur.