PEOPLE v. BASS (2005)

Judgment, Supreme Court, New York County (Laura E. Drager, J.), rendered October 9, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, tampering with physical evidence and unlawful possession of marijuana, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, 2 to 4 years and 15 days, respectively, unanimously affirmed.

 The court properly denied defendant's suppression motion.   Probable cause was established by the testimony of the arresting officer, who acted in response to information received from the observing officer concerning the drug transaction he observed, which was corroborated by the arrest of the buyer in possession of cocaine (see People v. Ketcham, 93 N.Y.2d 416, 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238 [1999];  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] ).   Defendant's argument concerning the alleged unreliability of the observing officer's information is unpreserved (see People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363 [1980] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it, since the hearing record does not support defendant's assertion that the observation was “physically impossible.”

 The evidence was legally sufficient to support defendant's conviction for tampering with physical evidence.   The totality of the evidence warrants the conclusion that, during his strip search at the precinct, defendant removed from his sock a plastic bag containing cocaine and swallowed it, before the police could stop him.   The person to whom he was seen selling drugs was arrested in possession of cocaine, and the officers who saw him swallow the plastic bag described a white substance inside (see People v. Rodriguez, 287 A.D.2d 325, 731 N.Y.S.2d 373 [2001], lv. denied 97 N.Y.2d 708, 739 N.Y.S.2d 109, 765 N.E.2d 312 [2002] ).