PEOPLE v. MOORE (2019)

DECISION & ORDER

ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

We agree with the Supreme Court's determination to credit the testimony of the arresting police sergeant at the suppression hearing.  This testimony established that there was probable cause for the defendant's arrest (see People v. Giler, 148 A.D.3d 1053, 1053–1054, 49 N.Y.S.3d 748;  People v. Spann, 82 A.D.3d 1013, 1014, 918 N.Y.S.2d 588).

The Supreme Court's Sandoval (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) ruling was a provident exercise of discretion and did not deprive the defendant of a fair trial (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963;  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216;  People v. Sagar, 251 A.D.2d 433, 673 N.Y.S.2d 325;  People v. Jamison, 228 A.D.2d 698, 645 N.Y.S.2d 503).

We disagree with the Supreme Court's determination to preclude the defendant's attorney from cross-examining the arresting police sergeant at trial with respect to the allegations of four federal civil rights lawsuits against him alleging his involvement in false arrests (see People v. Smith, 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53).  However, we find that the error was harmless, as the evidence of the defendant's guilt was overwhelming, and there was no significant probability that the jury would have acquitted the defendant had he been permitted to impeach the arresting police sergeant (see id. at 665, 36 N.Y.S.3d 861, 57 N.E.3d 53).

As the People correctly concede, the defendant's conviction of criminal possession of a controlled substance in the seventh degree must be vacated since that count is a lesser included offense of the crime of criminal possession of a controlled substance in the fourth degree (see Penal Law §§ 220.03, 220.09[1] ).

CHAMBERS, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.