PEOPLE v. BROWN

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jackie BROWN, Defendant-Appellant.

Decided: October 18, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, SWEENY, JJ. Laura R. Johnson, The Legal Aid Society, New York (Martin M. Lucente of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Amir Toossi of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered August 7, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to concurrent terms of 4 1/212 to 9 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   Although the undercover officer's radioed description of the alleged seller was general, it provided the police with reasonable suspicion to detain defendant pending a confirmatory identification, given the very close spatial and temporal factors, the fact that defendant was still in the undercover officer's presence when the arresting officer arrived, and the fact that defendant was the only other person in the vicinity (see People v. Rojas, 281 A.D.2d 346, 723 N.Y.S.2d 18 [2001], lv. denied 96 N.Y.2d 834, 729 N.Y.S.2d 455, 754 N.E.2d 215 [2001] ).   Under the circumstances, it would have been highly unlikely for the woman accompanying the undercover officer upon the arresting officer's arrival to have been a different woman from the alleged seller.   The record fails to support defendant's contention that she was “arrested” prior to the confirmatory identification;  the officer's choice of nomenclature in his testimony is not controlling (People v. Hicks, 68 N.Y.2d 234, 240, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986];  People v. Massillon, 289 A.D.2d 103, 104, 734 N.Y.S.2d 162 [2001], lv. denied 97 N.Y.2d 731, 740 N.Y.S.2d 704, 767 N.E.2d 161 [2002] ).