PEOPLE v. DUNHAM (2002)

Judgment, Supreme Court, New York County (John Cataldo, J. on dismissal motion;  Bruce Allen, J. at suppression hearing, jury trial and sentence), rendered January 27, 2000, convicting defendant 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.

 Defendant's suppression motion was properly denied.   Probable cause was established by the arresting officer's testimony that he acted in response to information received from the undercover officer who radioed that he had purchased drugs and provided a description of defendant that was sufficiently specific given the spatial and temporal factors and the absence of anyone other than defendant meeting the description.   Moreover, defendant was accompanied by another person who also matched a detailed description of one of the participants in the undercover sale (see, People v. Brown, 254 A.D.2d 88, 678 N.Y.S.2d 620, lv. denied 92 N.Y.2d 980, 683 N.Y.S.2d 761, 706 N.E.2d 749;  People v. Morales, 246 A.D.2d 396, 668 N.Y.S.2d 17, lv. denied 91 N.Y.2d 943, 671 N.Y.S.2d 723, 694 N.E.2d 892).   The hearing evidence warranted the inference that the undercover officer provided the location where the arrest took place.

 Defendant's motion to dismiss the indictment, based on a claim that he was deprived of his right to testify before the Grand Jury, was properly denied.   The People fulfilled their obligation of providing defendant with a reasonable opportunity to testify before the Grand Jury. His refusal to testify was his own decision (see CPL 190.50(5)(a);  People v. Clark, 267 A.D.2d 4, 699 N.Y.S.2d 352, lv. denied 94 N.Y.2d 946, 710 N.Y.S.2d 2, 731 N.E.2d 619).   Defendant's assigned counsel had spent two hours with defendant preparing him to testify and was fully prepared to represent him before the Grand Jury, and there was no reason to delay the proceeding on the basis of defendant's last-minute request for new counsel (see People v. Davis, 287 A.D.2d 376, 732 N.Y.S.2d 1;  People v. Smith, 283 A.D.2d 208, 726 N.Y.S.2d 12, lv. denied 96 N.Y.2d 907, 730 N.Y.S.2d 806, 756 N.E.2d 94).