PEOPLE v. SMITH (1997)

Judgment, Supreme Court, New York County (Ira Beal, J.), rendered November 21, 1995, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and seventh degrees, and sentencing him, as a second felony offender, to concurrent prison terms of 4 1/2 to 9 years and 1 year, respectively, unanimously affirmed.

 Defendant's suppression motion was properly denied.   The responding officers observed that defendant precisely matched a detailed description of a man with a gun involved in a dispute, that defendant was present at the location specified in the broadcast, that defendant exhibited a nervous manner and made furtive hand movements in his waist area, and that defendant first walked away upon the arrival of the police and then ran.   In light of these escalating factors, there was ample basis to attempt to forcibly detain defendant (People v. Li, 238 A.D.2d 277, 657 N.Y.S.2d 597).   The recovery of vials of cocaine abandoned by defendant furnished probable cause to arrest him, rendering the fruits of the arrest admissible.

 The court correctly declined to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of the count charging possession with intent to sell, since, in light of the quantity of vials and the issues presented at trial, there was no reasonable view of the evidence by which defendant could have been guilty of the lesser but not the greater charge.

The court's Sandoval ruling was a proper exercise of discretion.

MEMORANDUM DECISION.