PEOPLE v. VARGAS (2000)

Judgment, Supreme Court, New York County (Laura Drager, J. on motion;  William Leibovitz, J. at suppression hearing, jury trial and sentence), rendered July 14, 1998, convicting defendant of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to three concurrent terms of 5 1/212 to 11 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility and identification.   In this observation sale case, the People were under no obligation to call the buyers as witnesses in order to establish defendant's guilt.

 There was no violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.   Defendant was not entitled to discovery of statements made by the buyers of defendant's drugs, since his assertion that the buyers may have made statements exculpatory of defendant is pure speculation (see, People v. Smith, 204 A.D.2d 140, 612 N.Y.S.2d 13, lv. denied 84 N.Y.2d 872, 618 N.Y.S.2d 18, 642 N.E.2d 337).   Furthermore, defendant was fully aware of the existence of these buyers and their names, and could reasonably have made himself aware of any exculpatory evidence he claims he was denied (see, People v. Doshi, 93 N.Y.2d 499, 506, 693 N.Y.S.2d 87, 715 N.E.2d 113).

 Defendant was not entitled to a hearing regarding suppression of the drugs he secreted near a gate in a public area, since he failed to make sufficient factual assertions (see, CPL 710.60[1], [3];  People v. Gomez, 67 N.Y.2d 843, 501 N.Y.S.2d 650, 492 N.E.2d 778;  see also, People v. Ramirez-Portoreal, 88 N.Y.2d 99, 643 N.Y.S.2d 502, 666 N.E.2d 207).

We have considered and rejected defendant's remaining arguments.

MEMORANDUM DECISION.