PEOPLE v. LEON (2005)

 Defendant appeals from a judgment convicting him following a bench trial of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ) arising from the possession of heroin that was hidden in the soles of women's shoes and transported from Florida to New York. Supreme Court properly refused to suppress the evidence seized from defendant's vehicle.   The record establishes that the police had reasonable suspicion to stop defendant's vehicle, “thus justifying the use of the [K-9] dog to sniff around the vehicle” (People v. Gomez, 270 A.D.2d 959, 959, 705 N.Y.S.2d 478, lv. denied 94 N.Y.2d 948, 710 N.Y.S.2d 4, 731 N.E.2d 621, citing People v. Dunn, 77 N.Y.2d 19, 26, 563 N.Y.S.2d 388, 564 N.E.2d 1054, cert. denied 501 U.S. 1219, 111 S.Ct. 2830, 115 L.Ed.2d 1000).   After the dog gave a positive indication of drugs in the vehicle, the police properly obtained a search warrant authorizing their search thereof (see People v. Offen, 78 N.Y.2d 1089, 1091, 578 N.Y.S.2d 121, 585 N.E.2d 370).   Defendant further contends that the court erred in refusing to suppress his statement to the police because it resulted from his unlawful arrest.   We reject that contention.   Although we agree with defendant that the actions of the police officers in drawing their guns, frisking defendant, and transporting him to the Public Safety Building amounted to an arrest (see People v. Brnja, 50 N.Y.2d 366, 372, 429 N.Y.S.2d 173, 406 N.E.2d 1066;  People v. Johnson, 102 A.D.2d 616, 478 N.Y.S.2d 987, lv. denied 63 N.Y.2d 776, 481 N.Y.S.2d 1029, 470 N.E.2d 874), we reject the contention that he was arrested without probable cause.   Rather, the record establishes that the police had probable cause to arrest defendant at that time based on information obtained from a confidential informant (see generally People v. Rodriguez, 52 N.Y.2d 483, 438 N.Y.S.2d 754, 420 N.E.2d 946).

 Although we agree with defendant that the People improperly failed to disclose certain portions of the Confidential Informant Personal History Report, we conclude that reversal is not required because “there is no ‘reasonable probability’ that the verdict would have been different had the material been disclosed to the defense and presented to the trier of fact” (People v. Valentin, 1 A.D.3d 982, 983, 767 N.Y.S.2d 343, lv. denied 1 N.Y.3d 602, 776 N.Y.S.2d 233, 808 N.E.2d 369;  see People v. Hendricks [Appeal No. 2], 4 A.D.3d 798, 771 N.Y.S.2d 441, lv. denied 2 N.Y.3d 800, 781 N.Y.S.2d 299, 814 N.E.2d 471). In addition, we conclude that the People's failure to file a predicate felony statement with the County Clerk prior to sentencing is “harmless [error], and remanding for filing and resentencing would be futile and pointless” (People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338;  see People v. Dawson, 269 A.D.2d 867, 703 N.Y.S.2d 774).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: