PEOPLE v. DELACRUZ

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

The PEOPLE of the State of New York, Respondent, v. Frank DELACRUZ, Defendant-Appellant.

Decided: May 28, 2002

WILLIAMS, P.J., NARDELLI, ROSENBERGER, MARLOW and GONZALEZ, JJ. Barbara Jane Hutter, for Respondent. Laura Burde, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Dora Irizarry, J. at hearing;  Laura Visitacion-Lewis, J. at jury trial and sentence), rendered June 28, 2000, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

Defendant's suppression motion was properly denied.   Reasonable suspicion for defendant's detention was established by the arresting officer's testimony that he received a radio message from the “ghost” officer describing two men, one of whom was defendant, who had been observed by the ghost conversing with the undercover officer, followed by a second message from the ghost that there had been a “positive buy”, and repeating the descriptions of the two men.   Given the arresting officer's hearing testimony concerning the structure and functioning of the undercover buy operation, it was reasonable for the hearing court to infer that the ghost officer's testimony that defendant was a participant in the drug transaction was the product of first-hand observations and a signal from the purchasing officer (People v. Ketcham, 93 N.Y.2d 416, 422, 690 N.Y.S.2d 874, 712 N.E.2d 1238;  People v. Shorter, 275 A.D.2d 253, 711 N.Y.S.2d 431, lv. denied 95 N.Y.2d 961, 722 N.Y.S.2d 478, 745 N.E.2d 398).

The trial court's modification of its Sandoval ruling was proper because defendant's contradictory responses opened the door to the People's inquiry (see, People v. Cooper, 92 N.Y.2d 968, 683 N.Y.S.2d 757, 706 N.E.2d 745;  People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41).