PEOPLE v. FRIERSON (2009)

Judgment, Supreme Court, New York County (Richard D. Carruthers, J. at hearing;  Arlene R. Silverman, J. at nonjury trial and sentence), rendered January 31, 2007, convicting defendant of robbery in the third degree (three counts), attempted robbery in the third degree and criminal possession of stolen property in the fourth degree (three counts), and sentencing him, as a second felony offender, to an aggregate term of 5 1/212 to 11 years, unanimously affirmed.

 The hearing court properly denied defendant's suppression motion.   From an observation post in a drug-prone location, a police officer trained and experienced in the detection of narcotics transactions observed defendant converse briefly with another man, and then transfer currency to him in exchange for an unidentified object, in a manner the officer believed was indicative of a drug transaction.   These circumstances provided probable cause for defendant's arrest (see People v. Jones, 90 N.Y.2d 835, 837, 660 N.Y.S.2d 549, 683 N.E.2d 14 [1997];  People v. Wilson, 46 A.D.3d 254, 847 N.Y.S.2d 169 [2007], lv. denied 10 N.Y.3d 818, 857 N.Y.S.2d 51, 886 N.E.2d 816 [2008];  People v. Jack, 22 A.D.3d 238, 802 N.Y.S.2d 129 [2005], lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 585, 842 N.E.2d 483 [2005] ).   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).

 At the hearing, the People met their initial burden of demonstrating the fairness of the lineup at issue by offering testimony that fillers were selected on the basis of their generally similar appearance to defendant.   Defendant did not meet his ultimate burden of establishing that this lineup was unduly suggestive (see People v. Jackson, 98 N.Y.2d 555, 558-559, 750 N.Y.S.2d 561, 780 N.E.2d 162 [2002];  People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).

 We reject defendant's arguments concerning the sufficiency and weight of the evidence supporting one of the robbery convictions (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the court's determination that defendant is the person depicted in a surveillance photograph taken at the scene of this robbery.

Defendant's remaining argument is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.