The People, etc., respondent, v. David Anderson, appellant.

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

The People, etc., respondent, v. David Anderson, appellant.

2009–07960 (Ind.No. 12820/07)

Decided: January 17, 2012

MARK C. DILLON, J.P. THOMAS A. DICKERSON RANDALL T. ENG JOHN M. LEVENTHAL, JJ. Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Bruce Alderman of counsel;  Elisheva Mochkin on the brief), for respondent. There is no merit to the defendant's claim that the Supreme Court erred in denying that branch of his omnibus motion which was to suppress the clear plastic bag of crack cocaine that he dropped in view of the arresting police officer and the money recovered from his person upon his arrest.   We reject the defendant's contention that it is implausible that a defendant would drop contraband in front of a police officer (see e.g. People v Berrios, 28 N.Y.2d 361;  People v Sanchez, 248 A.D.2d 306;  People v Braxton, 214 A.D.2d 468, 469;  People v Cuevas, 203 A.D.2d 88, 89;  People v Olivo, 189 A.D.2d 786;  People v Harris, 186 A.D.2d 390;  People v Encarnacion, 175 A.D.2d 874).   There is no basis in the record to conclude that the arresting officer's testimony was fabricated or conveniently tailored to overcome constitutional objections (cf.  Matter of Robert D., 69 AD3d 714;  People v Lebron, 184 A.D.2d 784, 784–785;  People v Miret–Gonzalez, 159 A.D.2d 647, 649;  People v Quinones, 61 A.D.2d 765;  People v Sanders, 49 A.D.2d 610).   Giving the appropriate weight to the credibility findings of the hearing court, which had ample opportunity to observe and evaluate the witness's demeanor while testifying (see People v Wheeler, 2 NY3d 370, 374;  People v Prochilo, 41 N.Y.2d 759, 761;  People v Cole, 85 AD3d 1198, 1199;  People v Barley, 82 AD3d 996, 997), we find no basis to disturb the hearing court's determination to credit the arresting officer's testimony at the suppression hearing.   Moreover, the discovery of the drugs constituted probable cause for the defendant ‘s arrest (cf.  People v Leung, 68 N.Y.2d 734, 737;  People v Green, 81 A.D.2d 621, 623), and the lawful custodial arrest justified the contemporaneous search of the defendant (see New York v Belton, 453 U.S. 454, 457;  Chimel v California, 395 U.S. 752;  People v Belton, 55 N.Y.2d 49, 52).

Argued—December 16, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered July 30, 2009, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

We agree with the defendant that the Supreme Court erred in allowing an assistant district attorney to testify as to why her office chose not to prosecute a person the police arrested with the defendant for possessing the same bag of crack cocaine.   Her testimony that the “facts as presented to us did not establish that [the other person] possessed any drugs” was the equivalent of an opinion that the defendant was guilty (cf.  People v. Kozlowski, 11 NY3d 223, 240, cert denied US, 129 S. Ct 2775;  People v. Ciaccio, 47 N.Y.2d 431, 439;  People v. Creasy, 236 N.Y.205, 221–222).   Reversal, however, is not warranted because there was overwhelming evidence of the defendant's guilt and no significant probability that the improper testimony contributed to his convictions (see People v. Crimmins, 38 N.Y.2d 407, 412;  People v. Crimmins, 36 N.Y.2d 230, 241–242).

The defendant was not deprived of the effective assistance of counsel, as the record reveals that defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712;  People v. Baldi, 54 N.Y.2d 137, 147).

As the People correctly concede, under the facts of this case, the defendant's conviction of criminal possession of a controlled substance in the seventh degree must be vacated and that count of the indictment dismissed as an inclusory concurrent count of criminal possession of a controlled substance in the third degree (see CPL 300.40[3][b];  cf.  Penal Law §§ 220.03, 220.16[1];  People v. Lee, 39 N.Y.2d 388, 390).

DILLON, J.P., DICKERSON, ENG and LEVENTHAL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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