PEOPLE v. CRUZ (2018)

Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression hearing;  Daniel P. Conviser, J. at jury trial and sentencing), rendered August 25, 2015, convicting defendant of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, tampering with physical evidence and resisting arrest, and sentencing him, as a second felony drug offender, to an aggregate term of 4 years, unanimously affirmed.

The court properly denied defendant's suppression motion.  The hearing court saw and heard the witnesses, and there is no basis for disturbing its credibility determinations (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ), including those relating to a detective's ability to observe an apparent drug transaction.  The credible testimony established that the detective had probable cause to arrest defendant at the outset of the pursuit (see e.g. People v. Jack, 22 A.D.3d 238, 802 N.Y.S.2d 129 [1st Dept. 2005], lv denied 5 N.Y.3d 883, 808 N.Y.S.2d 585, 842 N.E.2d 483 [2005] ).  Accordingly, defendant's abandonment of physical evidence was not precipitated by any police illegality.

Defendant's legal sufficiency claims relating to his tampering with physical evidence and resisting arrest convictions are unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, we reject them on the merits.  We also find that those convictions were not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

We have considered and rejected defendant's arguments concerning the court's response to a jury note relating to the resisting arrest charge.  In any event, any error in this regard was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).