| People v Griffin |
| 2015 NY Slip Op 00134 [124 AD3d 1378] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Davon Griffin, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Donald E. Todd, A.J.),rendered August 31, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), defendant contends that County Court erred in denying hismotion to suppress cocaine and marihuana he possessed at the time of his arrest. Wereject that contention. The evidence adduced at the suppression hearing showed that thepolice in Syracuse arrested a person for illegally possessing hydrocodone pills, and thatperson thereafter became a confidential source (CS). Upon arrest, the CS offered tocooperate with the police by arranging a drug transaction with a dealer who previouslysold crack cocaine to him. The police agreed to work with the CS, who, in the presenceof the officers, called the dealer on his cell phone to arrange a drug transaction.Specifically, the dealer agreed to sell one ounce of crack cocaine to the CS for $1,400 infront of Dully's Market on the north side of the city.
Shortly after that call was made, defendant, riding as a passenger in a black Jeep,pulled into the parking lot at Dreams Market, which was around the corner from Dully'sMarket. Staked out in the area, a detective observed defendant exit the vehicle and makea phone call. At that time, the CS received a phone call from the dealer. The detectivetestified that he could hear defendant speaking on the phone from approximately 30 feetaway, and concluded that he was speaking to the CS, whose end of the conversation hewas hearing via the speaker phone of a fellow officer who was with the CS. At theprompting of the police, the CS told the dealer to drive over to Dully's Market. Momentslater, the black Jeep arrived at Dully's Market with defendant in the front passenger'sseat. The police converged on the vehicle, removed defendant therefrom, and placed himin handcuffs. In response to questions posed by the officers, defendant admitted that hepossessed cocaine, which he said was for his personal use, and a search of his personyielded cocaine and marihuana. The police also found cocaine on the floor in the frontseat of the Jeep.
After defendant was arrested and placed in the backseat of a patrol vehicle, an officerobserved him reaching into the back of his pants. Defendant was therefore removed fromthe vehicle to be searched more thoroughly, but he broke away and fled on foot.Defendant was apprehended after he tripped and fell, whereupon the officers observedseveral bags of cocaine on the ground where defendant had been prone. After he wasindicted, defendant moved to suppress the drugs seized by the police, but the courtdenied the motion. The court thereafter appointed new counsel for defendant, whomoved to suppress statements that defendant made to the police. The court granted thatmotion in part. Defendant nevertheless elected to plead guilty to criminal possession of acontrolled substance in the third degree in exchange for a sentence promise from thecourt of seven years in prison plus a period of postrelease supervision. We nowaffirm.
Defendant contends that the court erred in denying his motion to suppress thecocaine seized by the police because the detective's testimony that he overhearddefendant speaking on his cell phone from a distance of 30 feet is incredible as a matterof law. As a preliminary matter, we note that defendant did not advance that particularcontention at the suppression hearing, and it is therefore unpreserved for our review(see CPL 470.05 [2]). In any event, in reviewing a determination of a suppressioncourt, "great weight must be accorded its decision because of its ability to observe andassess the credibility of the witnesses, and its findings should not be disturbed unlessclearly erroneous" (People vMejia, 64 AD3d 1144, 1145 [2009], lv denied 13 NY3d 861 [2009][internal quotation marks omitted]). Here, the court expressly credited that portion of thedetective's testimony, and we perceive no basis in the record for us to set aside the court'scredibility determination in that regard. Unlike defendant, we do not find it impossible tobelieve that the detective was able to hear defendant speaking from a distance of 30 feet.Moreover, the mere fact that the court did not credit another portion of the detective'stestimony did not compel the court to disregard his entire testimony.
In any event, even if the detective did not hear what defendant said on his cell phonewhile defendant was engaged in a conversation in the parking lot at Dreams Market, thepolice nevertheless had probable cause to arrest defendant when he arrived moments laterat Dully's Market. We conclude that it was more probable than not that defendant was theperson speaking on the phone to the CS and making arrangements for the sale of crackcocaine in his possession and, thus, the "facts and circumstances [were] sufficient towarrant a prudent [person] in believing that the [suspect] had committed or wascommitting an offense" (Fitzpatrick v Rosenthal, 29 AD3d 24, 28 [2006], lvdenied 6 NY3d 715 [2006] [internal quotation marks omitted]).
Defendant further contends that the court erred in refusing to conduct aHuntley hearing with respect to the admissibility of statements he made to thepolice that were referenced in the People's CPL 710.30 notice. We reject that contention.There were four sets of statements referenced in the CPL 710.30 notice. Defendantconceded that the first set of statements—those he made on the phone to the CS inarranging the drug transaction—were not subject to suppression becausedefendant was not in custody at the time and thus the statements were voluntary innature. Based on evidence adduced at the Mapp hearing, the court suppressed thesecond and third sets of statements, i.e., those statements defendant made after he wasarrested but before he fled. Although the court refused to suppress the fourth set ofstatements, it nevertheless ruled that those statements would be inadmissible at trialbecause they were more prejudicial than probative. Consequently, the only statementsthat the People were allowed to use at trial were those that defendant correctly concededwere voluntary. Thus, there was no need for a Huntley hearing.
We have reviewed defendant's remaining contention and conclude that it does notwarrant reversal. Present—Scudder, P.J., Smith, Carni, Lindley and Sconiers,JJ.