People v. Morales

221 A.D.2d 271, 634 N.Y.S.2d 460, 1995 N.Y. App. Div. LEXIS 12154

Opinion

—Judgment, Supreme Court, New York County (Joan Sudolnik, J., at suppression hearing; Richard Carruthers, J., at trial), rendered January 27, 1993, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 10 to 20 years, unanimously affirmed.

Evidence at the suppression hearing was that the undercover officer observed defendant making three sales while about 45 feet away, across the street from where the undercover officer was making a buy. After the officer transmitted descriptions, his own sellers were arrested, and defendant, who had left the scene, was apprehended about 20 minutes later down the block in possession of numerous glassines of heroin, cash and a beeper. The identification was confirmed by the undercover officer in a drive-by identification. On appeal, defendant raises issues of credibility relating to the officer’s ability to observe him and several aspects of the officer’s description. We accord the suppression court’s factual findings great deference, and find no basis upon which to disturb its ruling (People v Sioba, 187 AD2d 317, lv denied 81 NY2d 893). The undercover officer’s affirmative response at trial to the query whether he had "seen defendant or had any dealings with him” prior to the day of the arrest did not compel the inference that defendant had been involved in prior drug dealing, but only that the officer had previously seen defendant in the neighborhood (compare, People v Carter, 195 AD2d 566, lv denied 82 NY2d 752). In any event, the question was relevant to identity, which was a disputed issue, and the probative value of the evidence outweighed its potential for any undue prejudice. Finally, the sentence is not unduly harsh, considering defendant’s lengthy criminal history and the fact that defendant, while on bail, absconded during the jury’s deliberations. Concur—Sullivan, J. P., Ellerin, Ross, Nardelli and Tom, JJ.