PEOPLE v. BERRING (2009)

Judgment, Supreme Court, New York County (Michael J. Obus, J. at suppression hearing;  Edward J. McLaughlin, J. at jury trial and sentence), rendered June 5, 2007, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender whose prior felony conviction was a violent felony, to an aggregate term of 6 years, unanimously affirmed.

The hearing court properly denied defendant's request to call the undercover officer at the suppression hearing since the hearing evidence did not raise any substantial question as to the legality of the arrest (see People v. Petralia, 62 N.Y.2d 47, 476 N.Y.S.2d 56, 464 N.E.2d 424 [1984], cert. denied 469 U.S. 852, 105 S.Ct. 174, 83 L.Ed.2d 109 [1984];  People v. Medina, 9 A.D.3d 251, 779 N.Y.S.2d 207 [2004], lv. denied 3 N.Y.3d 739, 786 N.Y.S.2d 818, 820 N.E.2d 297 [2004] ).   In this unusual “buy and bust” case, the undercover officer who bought the drugs seized defendant himself and held him for the arresting officer.   The arresting officer testified that he observed the undercover officer struggling with defendant, who wore the same color shirt as one of the described sellers, and also testified that the undercover officer pointed out a bag on the ground containing numerous individual drug packages and stated that defendant had dropped it.   The chain of events, viewed as a whole, clearly warranted the conclusion that there was a drug transaction and that defendant was one of the sellers (see People v. Quezada, 305 A.D.2d 207, 758 N.Y.S.2d 801 [2003], lv. denied 100 N.Y.2d 586, 764 N.Y.S.2d 396, 796 N.E.2d 488 [2003] )

The verdict was not against the weight of the evidence (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 jury's determinations concerning credibility.