PEOPLE v. CABRERA (2004)

Judgment, Supreme Court, New York County (James A. Yates, J. at hearing;  Dora L. Irizarry, J. at plea and sentence), rendered April 12, 2002, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 8 1/313 to 25 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 6 to 18 years, and otherwise affirmed.

 The court properly denied defendant's suppression motion.   Defendant did not preserve his present claim that he was seized on the basis of an inadequate description, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the police had probable cause to arrest defendant because he fit the description of a person who had sold drugs to an undercover officer moments before.   This description, which included his distinctive clothing and hair color and the clothing of the man accompanying him, was sufficiently specific given the spatial and temporal factors and the absence of any other pair of men who could meet these descriptions (see e.g. People v. Ortiz, 291 A.D.2d 273, 738 N.Y.S.2d 36 [2002], lv. denied 98 N.Y.2d 679, 746 N.Y.S.2d 468, 774 N.E.2d 233 [2002] ).   In any event, based on this description, the police at least had reasonable suspicion, which ripened into probable cause when defendant discarded bags of cocaine as he was being lawfully detained.

We find the sentence excessive to the extent indicated.