People v. Dixon

30 A.D.3d 1050, 815 N.Y.S.2d 848

Opinion

Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered June 4, 2003. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), defendant contends that County Court erred in determining that the police had probable cause for his warrantless arrest. We conclude that the police possessed sufficient information to support a reasonable belief that an offense was being committed, and thus we reject defendant’s contention (see People v Maldonado, 86 NY2d 631, 635 [1995]; People v Hicks, 68 NY2d 234, 238 [1986]). We agree with defendant, however, that the court erred in admitting the opinion testimony of a police officer that a hand-to-hand drug transaction had occurred and that defendant’s possession of $52 was consistent with the sale of drugs (see People v Hartzog, 15 AD3d 866 [2005], lv denied 4 NY3d 831 [2005]). Nevertheless, we conclude that the error is harmless (see id. at 867; People v Tarver, 292 AD2d 110, 115 [2002], lv denied 98 NY2d 702 [2002]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.E, Scudder, Martoche, Smith and Hayes, JJ.