PEOPLE v. FACEY (2005)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 11, 2002, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (O'Dwyer, J.H.O.), 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 evidence was legally insufficient to establish his guilt of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The defendant's contention that the police lacked probable case to arrest him is unpreserved for appellate review (see People v. High, 18 A.D.3d 775, 795 N.Y.S.2d 701, lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670).   Further, the defendant may not rely on trial testimony to challenge the suppression ruling, since he failed to request a reopening of the suppression hearing (see People v. Riley, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520).   In any event, probable cause was established because the arresting officer was entitled to rely on the information provided by the police sergeant observing the drug sale (see People v. Green, 13 A.D.3d 646, 789 N.Y.S.2d 500).

The trial court was justified in interrupting the defense counsel's summation upon objection by the prosecutor, since the defense counsel's argument was not grounded in the evidence presented at trial (see People v. Barreau, 183 A.D.2d 904, 584 N.Y.S.2d 140).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).