| People v Phillibert |
| 2012 NY Slip Op 06846 [99 AD3d 531] |
| October 11, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v KhaniPhillibert, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Lindsey Ramistella of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Denis J. Boyle, J., at hearing; Analisa Torres, J.,at jury trial and sentencing), rendered November 2, 2009, as amended December 2, 2009,convicting defendant of criminal sale of a controlled substance in the third degree, andsentencing him to a term of two years, unanimously affirmed.
The court properly denied defendant's suppression motion. The hearing record does notsupport defendant's assertion that the arresting officer had no actual recollection of thedescription conveyed to him by the ghost officer. The totality of the arresting officer's testimonymade clear that while he had no independent recollection of the description, hisrecollection had been refreshed by reading the buy report prepared by the primary undercoverofficer, so that he was testifying on the basis of this revived recollection (see Prince,Richardson on Evidence § 6-214 [Farrell 11th ed 1995]). A witness may use "anymemorandum, whether made by himself [or herself] or another," to refresh his or her memory(People v Goldfeld, 60 AD2d 1, 11 [4th Dept 1977], lv denied 43 NY2d 928[1978]). The issue of whether a document actually refreshed a witness's recollection is a matterof credibility to be resolved by the trier of fact (see e.g. People v Rivera, 213 AD2d 281,281-282 [1995], lv denied 86 NY2d 740 [1995]), and there is no basis for disturbing thecourt's determination.
Defendant's remaining suppression arguments are unavailing. As this Court held on thecodefendant's appeal, "The arresting officer's testimony that he received a radio transmissionfrom a ghost officer about a drug sale, along with the arresting officer's knowledge of the ghost'srole in the planned undercover operation, permitted an inference that the transmission was basedon the ghost officer's presumptively reliable observations. This report provided probable cause toarrest defendant once the officer saw him in the vicinity of the drug transaction about fiveminutes after receiving the radio report and observed that he matched the sufficiently detaileddescription provided in that report" (People v Ramirez, 96 AD3d 474, 475 [1st Dept 2012] [citationsomitted]).
Defendant did not preserve his challenge to the court's charge and we decline to review it inthe interest of justice. As an alternative holding, we also reject it on the merits. Defendant and thecodefendant were charged with jointly engaging in a drug transaction. Under the facts of [*2]the case, the buy money recovered from the codefendant wasadmissible against both defendants, and defendant was not entitled to an instruction to thecontrary. Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels,JJ.