People v. Bazilo

196 A.D.2d 723, 602 N.Y.S.2d 1, 1993 N.Y. App. Div. LEXIS 8464

Opinion

Judgment, Supreme Court, New York County (Richard Failla, J.), rendered April 15, 1991, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years incarceration, unanimously affirmed.

The People’s witness, an undercover police detective, was assigned as a backup to another drug operation and was awaiting a transmission on that assignment when he observed defendant. In the circumstances the officer could not be expected to be able to specifically describe the 10 to 15 people he observed buying drugs from defendant. The inability to recall these less important details of the incident 16 months later when the Mapp hearing was held does not make his testimony so " ' "inherently incredible or improbable” ’ ” as to warrant disturbing the suppression court’s determination of credibility (People v Maylor, 184 AD2d 371, lv denied 80 NY2d 906; People v Rivera, 68 NY2d 786). Since the officer’s testimony sufficed to establish probable cause to arrest, the search incident to that arrest was lawful and suppression was properly denied. Concur—Rosenberger, J. P., Wallach, Asch and Rubin, JJ.