PEOPLE v. ARMSTRONG

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

The PEOPLE of the State of New York, Respondent, v. Peter ARMSTRONG, Defendant-Appellant.

Decided: November 19, 2002

WILLIAMS, P.J., NARDELLI, ROSENBERGER, ELLERIN, LERNER, JJ. Paul Cirino, for Respondent. Paul A. Montuori, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered October 30, 2000, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

 Defendant's suppression motion was properly denied.   There was probable cause to arrest defendant when the experienced undercover officer, who had made numerous purchases in this drug prone location, observed defendant nervously looking around both before and after an unidentified woman handed him money in exchange for an unknown object, and, upon subsequently making eye contact with the undercover officer, placing a hood over his head and changing directions (People v. Jones, 90 N.Y.2d 835, 660 N.Y.S.2d 549, 683 N.E.2d 14;  People v. Dukes, 254 A.D.2d 149, 681 N.Y.S.2d 4, lv. denied 93 N.Y.2d 898, 689 N.Y.S.2d 710, 711 N.E.2d 986).   Defendant's actions, when viewed in totality rather than in isolation, clearly exhibited a pattern of furtive conduct.   Furthermore, his hand movements were not those of a person counting out change or making some other innocuous transaction.

 Since much of the evidence introduced by defendant at trial had little value except to arouse sympathy, the People were entitled to respond to this indirect or implicit appeal for sympathy.   Accordingly, we find that the challenged portions of the People's summation did not mischaracterize the evidence or defendant's defense, and did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724).

We perceive of no basis for reducing the sentence.