People v. Diequez

Appellate Division of the Supreme Court of New York

People v. Diequez

286 A.D.2d 991, 731 N.Y.S.2d 829, 2001 N.Y. App. Div. LEXIS 9146

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 28, 2001

StatusPublished

This text of 286 A.D.2d 991 (People v. Diequez) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Diequez, 286 A.D.2d 991, 731 N.Y.S.2d 829, 2001 N.Y. App. Div. LEXIS 9146 (N.Y. Ct. App. 2001).

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Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]), defendant contends that his postplea arrest for criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) was based on an illegal search and seizure and that County Court therefore erred in enhancing his sentence based on that arrest. We disagree.

At a hearing conducted pursuant to People v Outley (80 NY2d 702), the arresting officer testified that, on the day before the arrest, he observed defendant on a street corner engaged in what appeared to be a drug transaction and that one of the participants thereafter informed him that defendant was selling heroin. The next day the officer observed defendant on the same street corner engaged in the same type of activity. Upon searching defendant, the officer found that he was in possession of 20 decks of heroin. Contrary to the contention of defendant, an Outley hearing is not a suppression hearing. The record establishes that there was a legitimate basis for the arrest (see, People v Outley, supra, at 713) and thus it was properly used as the basis for enhancing defendant’s sentence. (Appeal from Judgment of Monroe County Court, Marks, J. — Attempted Criminal Sale Controlled Substance, 3rd Degree.) Present— Wisner, J. P., Hurlbutt, Scudder, Kehoe and Burns, JJ.

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—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]), defendant contends that his postplea arrest for criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) was based on an illegal search and seizure and that County Court therefore erred in enhancing his sentence based on that arrest. We disagree.

At a hearing conducted pursuant to People v Outley (80 NY2d 702), the arresting officer testified that, on the day before the arrest, he observed defendant on a street corner engaged in what appeared to be a drug transaction and that one of the participants thereafter informed him that defendant was selling heroin. The next day the officer observed defendant on the same street corner engaged in the same type of activity. Upon searching defendant, the officer found that he was in possession of 20 decks of heroin. Contrary to the contention of defendant, an Outley hearing is not a suppression hearing. The record establishes that there was a legitimate basis for the arrest (see, People v Outley, supra, at 713) and thus it was properly used as the basis for enhancing defendant’s sentence. (Appeal from Judgment of Monroe County Court, Marks, J. — Attempted Criminal Sale Controlled Substance, 3rd Degree.) Present— Wisner, J. P., Hurlbutt, Scudder, Kehoe and Burns, JJ.

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Bluebook (online)

286 A.D.2d 991, 731 N.Y.S.2d 829, 2001 N.Y. App. Div. LEXIS 9146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-diequez-nyappdiv-2001.

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