PEOPLE v. FLEMMING

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

The PEOPLE of the State of New York, Respondent, v. Woodrow FLEMMING, Defendant-Appellant.

Decided: September 23, 2003

BUCKLEY, P.J., NARDELLI, TOM, MAZZARELLI and GONZALEZ, JJ. Claris R. Sukkar, for Respondent. Risa Gerson, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (William Mogulescu, J. at hearing;  Denis Boyle, J. at plea and sentence), rendered April 11, 2001, convicting defendant of attempted criminal sale of a controlled substance in the third degree, and sentencing him to time served, unanimously affirmed.

The court properly denied defendant's suppression motion.   The police had probable cause to arrest defendant because he fit the description of a person who had sold drugs to an undercover officer moments before.   This description was sufficiently specific given the spatial and temporal factors and the absence of anyone else who could meet the description (see e.g. People v. Williams, 281 A.D.2d 569, 721 N.Y.S.2d 806, lv. denied 96 N.Y.2d 836, 729 N.Y.S.2d 458, 754 N.E.2d 218).   In any event, based on this description, the police did nothing more intrusive than approach defendant, who immediately discarded a quantity of glassine envelopes.   This was a voluntary act of abandonment that was not in response to any unlawful police conduct and which independently provided probable cause for defendant's arrest.