PEOPLE v. RIZZO (2001)

Judgment, Supreme Court, New York County (Ira Beal, J., at suppression hearing;  William Wetzel, J., at jury trial and sentence), rendered February 5, 1998, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 15 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility.   The evidence clearly warranted the conclusion that defendant was a participant in the drug operation whose role was to safeguard the money and drugs (see, People v. Romero, 252 A.D.2d 356, 675 N.Y.S.2d 74).   The jury properly rejected defendant's incredible explanation of the transaction.

 The trial court properly declined to submit criminal possession of a controlled substance in the seventh degree as a lesser included offense since no reasonable view of the evidence, which included the recovery of a large quantity of heroin and the prerecorded buy money from defendant, supports a finding of possession without intent to sell (see, People v. Henry, 272 A.D.2d 238, 708 N.Y.S.2d 382, lv. denied 95 N.Y.2d 890, 715 N.Y.S.2d 382, 738 N.E.2d 786).   Defendant's own testimony, even if credited, still established possession with intent to sell.

 Defendant's suppression motion was properly denied.   Probable cause for defendant's arrest was provided by a description that was sufficiently specific and accurate, given that defendant was arrested at the specified location shortly after the drug transaction and was the only person present who matched the description (see, People v. Mojica, 267 A.D.2d 19, 699 N.Y.S.2d 51, lv. denied 94 N.Y.2d 950, 710 N.Y.S.2d 7, 731 N.E.2d 624).

MEMORANDUM DECISION.