PEOPLE v. RUMBLE (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mullen, J.), rendered March 14, 2007, convicting him of criminal possession of marijuana in the fifth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the police lacked probable cause to arrest him is without merit.   The defendant was arrested close to the location where an undercover officer observed him making three apparent drug sales, minutes after that officer transmitted the defendant's description by radio to other officers.   He was wearing the attire that the officer had described when he was stopped, in the middle of the night, in an area with minimal pedestrian and vehicular traffic (see People v. Williams, 170 A.D.2d 629, 566 N.Y.S.2d 402;  People v. Zarzuela, 141 A.D.2d 788, 529 N.Y.S.2d 864).   Additionally, although the defendant contends that the officer who detained him prior to his arrest by a different officer had no basis for stopping him, under the circumstances of this case it can be inferred that the detaining officer was acting at the direction of the undercover officer (see People v. Ramirez-Portoreal, 88 N.Y.2d 99, 114, 643 N.Y.S.2d 502, 666 N.E.2d 207;  see also People v. Ketcham, 93 N.Y.2d 416, 421, 690 N.Y.S.2d 874, 712 N.E.2d 1238).   Moreover, the People were not required to produce the undercover officer, rather than the arresting officer, at the hearing (see People v. Petralia, 62 N.Y.2d 47, 51-52, 476 N.Y.S.2d 56, 464 N.E.2d 424, cert. denied 469 U.S. 852, 105 S.Ct. 174, 83 L.Ed.2d 109;  People v. Green, 13 A.D.3d 646, 789 N.Y.S.2d 500).   Accordingly, the court properly declined to suppress the physical evidence seized following the defendant's arrest.

The defendant's remaining contention is unpreserved for appellate review (see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656;  People v. Beauliere, 36 A.D.3d 623, 831 N.Y.S.2d 88;  People v. Waldron, 162 A.D.2d 485, 486, 556 N.Y.S.2d 404) and, in any event, is without merit (see People v. White, 41 A.D.3d 1036, 838 N.Y.S.2d 248;  People v. Castellanos, 234 A.D.2d 381, 651 N.Y.S.2d 876;  People v. Budhai, 182 A.D.2d 693, 582 N.Y.S.2d 730).