| People v Mason |
| 2014 NY Slip Op 05204 [119 AD3d 710] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Christopher Mason, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andThomas M. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered December 12, 2011, convicting him of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in theseventh degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (Chun, J.), of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in denying that branch ofhis omnibus motion which was to suppress physical evidence is without merit. Thedefendant was arrested at the same location where an undercover officer observed himmaking a drug sale, minutes after the undercover officer transmitted the defendant'sdescription by radio to the arresting officers. In light of the spatial and temporalproximity between the undercover officer's observations and the defendant's subsequentarrest, and the fact that the defendant's attire and that of his companion matched thegiven description, the court properly concluded that the officer had probable cause toarrest the defendant (see People v Watson, 187 AD2d 743, 744 [1992];People v Toodles, 184 AD2d 674, 675 [1992]; People v Williams, 170AD2d 629 [1991]; People v Zarzuela, 141 AD2d 788 [1988]; see also People v Rumble, 60AD3d 791 [2009]).
The defendant failed to meet his "high burden" (People v Hobot, 84 NY2d1021, 1022 [1995]) of " 'demonstrat[ing] the absence of strategic or otherlegitimate explanations' for counsel's allegedly deficient conduct" in failing to request amissing witness charge with respect to a certain police officer (People v Caban, 5 NY3d143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]; seePeople v Parilla, 158 AD2d 556, 557 [1990]; see also People v Manzi, 113 AD3d 481 [2014]). While a"single error may qualify as ineffective assistance . . . when the error issufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial"(People v Caban, 5 NY3d at 152), any error here did not rise to this level (see Matter of Lasun S., 76AD3d 1079 [2010]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
[*2] The defendant's remainingcontention is without merit (see People v Sostre, 70 AD2d 40, 45 [1979],affd 51 NY2d 958 [1980]). Balkin, J.P., Chambers, Cohen and Duffy, JJ.,concur.