PEOPLE v. WATTS (2004)

Judgments, Supreme Court, New York County (Ira Beal, J.), rendered January 2, 2002, convicting defendant Lester Watts, 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 5 to 10 years, and convicting defendant Michael Allen, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 4 1/212 to 9 years and 1 year, respectively, unanimously affirmed.

 The court properly denied defendant Watts's suppression motion.   As the People specifically argued at the hearing, the undercover and “ghost” officers' radio transmissions, giving a detailed description of Watts and identifying him as a participant in a drug transaction, provided probable cause for Watts's arrest (see e.g. People v. Darby, 287 A.D.2d 300, 731 N.Y.S.2d 683, lv. denied 97 N.Y.2d 753, 742 N.Y.S.2d 613, 769 N.E.2d 359;  see also People v. Edwards, 304 A.D.2d 367, 758 N.Y.S.2d 35).   The court's impromptu oral remarks provide no basis for suppression, since the court made it clear that these remarks were not part of its suppression decision.   Since Watts was lawfully arrested, the police properly told him to spit out what he was concealing in his mouth, which turned out to be bags of cocaine (People v. Matherine, 166 A.D.2d 322, 560 N.Y.S.2d 1018, lv. denied 76 N.Y.2d 1022, 565 N.Y.S.2d 773, 566 N.E.2d 1178).

 The prosecutor became an unsworn witness by eliciting a conversation she had with the undercover officer about a mistake in his paperwork, and by stating in summation that she had decided not to have him correct the error (see People v. Paperno, 54 N.Y.2d 294, 300-301, 445 N.Y.S.2d 119, 429 N.E.2d 797).   However, there is no basis for reversal because defendants have not demonstrated a substantial likelihood of prejudice flowing from the prosecutor's conduct (id. at 304, 445 N.Y.S.2d 119, 429 N.E.2d 797;  see also People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The other portions of the prosecutor's summation challenged by defendants on appeal generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, made in response to defense arguments, and nothing in the summation deprived defendants of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724;  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).

We reject Watts's argument that the sale and possession counts were multiplicitous.   These were non-inclusory concurrent counts requiring proof of different facts (see People v. Saunders, 290 A.D.2d 461, 463, 736 N.Y.S.2d 90, lv. denied 98 N.Y.2d 681, 746 N.Y.S.2d 470, 774 N.E.2d 235).

Defendants' remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.