PEOPLE v. SANCHEZ

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

The PEOPLE of the State of New York, Respondent, v. Jose SANCHEZ, a/k/a Juan Medina, Defendant-Appellant.

Decided: March 31, 1998

Before ELLERIN, J.P., and NARDELLI, WALLACH, TOM and MAZZARELLI, JJ. Ann Ehrenpreis Scherzer, for respondent. Richard Joselson, for defendant-appellant.

Judgment, Supreme Court, New York County (Felice Shea, J., at jury trial and sentence;  William Leibovitz, J., at de novo Mapp hearing), rendered July 28, 1992, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 16 years to life and 4 to 12 years, respectively, unanimously affirmed.

By order entered February 11, 1997 (236 A.D.2d 243, 653 N.Y.S.2d 563), we held the appeal in abeyance and remanded the case to the trial court for a de novo Mapp hearing.   In an order entered October 20, 1997, the motion court, crediting the testimony of Detective Jacqueline Brown, found no basis for standing, found that defendant had abandoned the contraband and, on the merits, denied suppression.

Detective Jacqueline Brown and a fellow officer were walking south on Broadway near 149th Street when they saw a group of men standing in front of a building known to them as a drug prone location.   The officers recognized whistles and shouts from the men as they scattered to be alerts that police were approaching.   Defendant, with a brown paper bag under his arm, was left behind but, upon making eye contact with the officers, he, too, fled, dropping the bag as he went.   As Detective Brown looked in the bag, discovering cocaine, the other officer, to whom this information was conveyed in police code, apprehended defendant, and a significant sum of cash was recovered from defendant's person.

 We reject defendant's contention that a scenario in which a defendant dropped contraband in front of police was implausible as a matter of law (see, e.g., People v. Braxton, 214 A.D.2d 468, 625 N.Y.S.2d 228 lv. denied 86 N.Y.2d 732, 631 N.Y.S.2d 613, 655 N.E.2d 710;  People v. Cuevas, 203 A.D.2d 88, 610 N.Y.S.2d 41 lv. denied 83 N.Y.2d 909, 614 N.Y.S.2d 391, 637 N.E.2d 282;  People v. Harris, 186 A.D.2d 390, 588 N.Y.S.2d 184 lv. denied 80 N.Y.2d 1027, 592 N.Y.S.2d 676, 607 N.E.2d 823;  People v. Smith, 187 A.D.2d 267, 271, 589 N.Y.S.2d 427 lv. denied 81 N.Y.2d 893, 597 N.Y.S.2d 955, 613 N.E.2d 987).   Rather, we give appropriate weight to the credibility findings of the hearing court, which had ample opportunity to observe and evaluate the witness's demeanor while testifying (People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380) and to assess purported inconsistencies.   Defendant's poor strategic choice in remaining at the location as police approached does not evince a lack of credibility in the officer's testimony (see, People v. Deas, 156 A.D.2d 140, 548 N.Y.S.2d 187 lv. denied 75 N.Y.2d 918, 555 N.Y.S.2d 36, 554 N.E.2d 73).   In no regard do we find the officer's testimony to be manifestly untrue, internally contradictory on material points (People v. Figueroa, 213 A.D.2d 343, 624 N.Y.S.2d 421 lv. denied 86 N.Y.2d 794, 632 N.Y.S.2d 507, 656 N.E.2d 606) or tailored (People v. Jones, 168 A.D.2d 370, 562 N.Y.S.2d 689 lv. denied 77 N.Y.2d 907, 569 N.Y.S.2d 940, 572 N.E.2d 623) so as to warrant reversal.   Potential inconsistencies were explored and resolved, or else were not sufficiently material as to detract from the overall candor of the witness's narrative testimony.   The eventual resignation of her fellow officer and the circumstances related thereto, which were not properly before the suppression court, do not require any particular conclusions as to Detective Jacqueline Brown's testimony and we do not find that such affects her credibility.

 Since the credible evidence undermines, at the least, any objective indication that defendant had retained an expectation of privacy in the bag and its contents (People v. Ramirez-Portoreal, 88 N.Y.2d 99, 643 N.Y.S.2d 502, 666 N.E.2d 207), he lacks standing (People v. DeLaCruz, 242 A.D.2d 410, 662 N.Y.S.2d 300;  People v. Turner, 228 A.D.2d 331, 644 N.Y.S.2d 242) and has no further basis to challenge the bag's recovery (Matter of Devon H., 225 A.D.2d 135, 140-141, 650 N.Y.S.2d 120).   In any event, by dropping the bag and running inside upon the mere approach of police, without further interaction between defendant and police (People v. Adams, 173 A.D.2d 207, 569 N.Y.S.2d 88 lv. denied 78 N.Y.2d 1073, 577 N.Y.S.2d 236, 583 N.E.2d 948), defendant voluntarily abandoned the contraband (People v. Bartley, 219 A.D.2d 566, 631 N.Y.S.2d 690 lv. denied 87 N.Y.2d 898, 641 N.Y.S.2d 227, 663 N.E.2d 1257;  People v. Butler, 184 A.D.2d 305, 584 N.Y.S.2d 571 lv. denied 80 N.Y.2d 927, 589 N.Y.S.2d 855, 603 N.E.2d 960), and we reject his claim that the seizure of the bag was derivative of unlawful police conduct (People v. RamirezPortoreal, supra at 108, 110, 643 N.Y.S.2d 502, 666 N.E.2d 207).   We have considered defendant's remaining claims and find them to be without merit.

MEMORANDUM DECISION.