PEOPLE v. COLEMAN (2001)

Judgment, Supreme Court, New York County (William Wetzel, J.), rendered February 16, 1999, convicting defendant, after a jury trial, 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 4 1/212 to 9 years, unanimously affirmed.

 Defendant's suppression motion was properly denied.   There is no basis upon which to disturb the court's credibility determinations.   Defendant was arrested within moments of a transmission of a positive buy, with a description of the sellers, and within one block of the sale location on a nearly deserted street, with no other persons matching the description.   This evidence permits no other inference but that the testifying officer and the arresting officer both heard the identical transmission and that defendant was arrested as a result of that transmission.   The testimony of the arresting officer was therefore unnecessary (see, People v. Gonzalez, 91 N.Y.2d 909, 669 N.Y.S.2d 526, 692 N.E.2d 557;  People v. Sabeno, 223 A.D.2d 512, 637 N.Y.S.2d 106, lv. denied 88 N.Y.2d 884, 645 N.Y.S.2d 459, 668 N.E.2d 430).

 The trial court properly denied defendant's request for a missing witness charge as to the ghost officer since defendant failed to make a sufficient showing that the ghost was in a position to witness the sale (see, People v. Vasquez, 272 A.D.2d 226, 709 N.Y.S.2d 395, lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375;  People v. Moultrie, 267 A.D.2d 181, 700 N.Y.S.2d 815, lv. denied 94 N.Y.2d 951, 710 N.Y.S.2d 7, 731 N.E.2d 624;  People v. Roca, 267 A.D.2d 74, 700 N.Y.S.2d 124, lv. denied 94 N.Y.2d 924, 708 N.Y.S.2d 364, 729 N.E.2d 1163).