PEOPLE v. BARNES (1998)

Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered March 21, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, criminal possession of a controlled substance in the seventh degree and resisting arrest, and sentencing him, as a second felony offender, to concurrent prison terms of 3 1/2 to 7 years, 1 year and 1 year, unanimously affirmed.

 The verdict was supported by legally sufficient evidence and was not against the weight of the evidence.   With regard to the resisting arrest charge, there was ample evidence that defendant knew that the men detaining him were police officers and that he was being arrested (Penal Law § 205.30).   We reject defendant's attack on the homogenizing process utilized by the chemist and find that the random sampling established that defendant possessed 919 milligrams of cocaine to support the fifth-degree possession charge (see, People v. Butler, 248 A.D.2d 274, 670 N.Y.S.2d 81).

 Defendant's suppression motions were properly denied in all respects.   Under the totality of the circumstances, there was probable cause to arrest defendant (People v. Jones, 90 N.Y.2d 835, 660 N.Y.S.2d 549, 683 N.E.2d 14).   In this drug prone location, the experienced narcotics officer observed defendant and an unapprehended male go through a hole in a fence, whereupon defendant exchanged an object that he retrieved from a brown paper bag that he was carrying for money.   Accordingly, the bag that defendant dropped after being lawfully pursued by the officer was searched incident to a lawful arrest, and was, in any event, abandoned.   Defendant's statements were not the product of interrogation (see, Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297).

Defendant's claim that the trial court effectively precluded him from making a summation with respect to the resisting arrest charge is unpreserved for appellate review and we decline to review it in the interest of justice.   Were we to review it, we would find that defense counsel succeeded in adequately presenting defendant's position on this charge in summation.

 To the extent that defendant's claim that he was denied effective assistance of counsel may be reviewed without the benefit of a CPL 440.10 motion (People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149), we find that trial counsel employed a successful strategy by candidly conceding that defendant possessed the drugs in the brown bag for his personal use in order to defeat the more serious charge of possession with intent to sell (People v. McCaskell, 217 A.D.2d 527, 529, 630 N.Y.S.2d 66, lv. denied 87 N.Y.2d 848, 638 N.Y.S.2d 607, 661 N.E.2d 1389).   We reject defendant's argument that such a concession is tantamount to a partial plea of guilt, thus requiring defendant's express consent (see, People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77;  People v. Ford, 205 A.D.2d 310, 612 N.Y.S.2d 575, lv. denied 84 N.Y.2d 1011, 622 N.Y.S.2d 922, 647 N.E.2d 128).   In any event, we note that defendant, in his own testimony, conceded possession for personal use.

MEMORANDUM DECISION.