PEOPLE v. JONES

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

The PEOPLE of the State of New York, Respondent, v. Theodore JONES, Defendant-Appellant.

Decided: May 14, 1998

Before LERNER, J.P., and ELLERIN, RUBIN and SAXE, JJ. Frank Glaser, for Respondent. Mary K. Warren, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Rena Uviller, J., at suppression hearing;  Bruce Allen, J., at jury trial and sentence), rendered March 14, 1995, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent prison terms of 41/212 to 9 years and 1 day, unanimously affirmed.

 Defendant's suppression motion was properly denied.   The record supports the hearing court's finding that the police did nothing more than approach defendant, and were some distance away when defendant voluntarily abandoned bags of cocaine.   Even were we to treat the police action to be an approach to request information under the first tier of People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, we would find that the officers had an objective credible reason for such action under the facts, as found by the hearing court, that defendant was observed, at a minimum, making an exchange of an unidentified object with another person on a desolate street at a drug prone location during the early morning hours (see, People v. Leveridge, 204 A.D.2d 246, 612 N.Y.S.2d 568, lv. denied 84 N.Y.2d 828, 617 N.Y.S.2d 149, 641 N.E.2d 170;  People v. White, 171 A.D.2d 607, 567 N.Y.S.2d 467, lv. denied 78 N.Y.2d 976, 574 N.Y.S.2d 956, 580 N.E.2d 428).   The fact that the location was drug prone was not rendered immaterial by police testimony that the precinct contained many such locations.   The hearing evidence fails to support defendant's claim that the police approach was so “intimidating” that the encounter rose to the level of a common-law inquiry (see, People v. Hollman, 79 N.Y.2d 181, 184-185, 192, 581 N.Y.S.2d 619, 590 N.E.2d 204).   Accordingly, defendant's abandonment of the drugs was not the product of any unlawful police action.

 Defendant's argument that the court's charge removed from the jury's consideration the issue of whether the substance in question was in fact cocaine is an argument requiring preservation (see, People v. Bettis, 249 A.D.2d 72, 671 N.Y.S.2d 237), and we decline to review this unpreserved claim in the interest of justice.   Were we to review this claim, we would find that any error in this regard was harmless in view of the overwhelming evidence that the substance constituted cocaine (id.).

MEMORANDUM DECISION.