People v. Vargas

278 A.D.2d 183, 718 N.Y.S.2d 339, 2000 N.Y. App. Div. LEXIS 13812

Opinion

Judgment, Supreme Court, New York County (Laura Drager, J., on motion; William Leibovitz, J., at suppression hearing, jury trial and sentence), rendered July 14, 1998, convicting defendant of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to three concurrent terms of 5V2 to 11 years, unanimously affirmed.

The verdict was based on legally sufficient evidence. There is no basis upon which to disturb the jury’s determinations concerning credibility and identification. In this observation sale case, the People were under no obligation to call the buyers as witnesses in order to establish defendant’s guilt.

There was no violation of Brady v Maryland (373 US 83). Defendant was not entitled to discovery of statements made by the buyers of defendant’s drugs, since his assertion that the buyers may have made statements exculpatory of defendant is pure speculation (see, People v Smith, 204 AD2d 140, lv denied 84 NY2d 872). Furthermore, defendant was fully aware of the existence of these buyers and their names, and could reasonably have made himself aware of any exculpatory evidence he claims he was denied (see, People v Doshi, 93 NY2d 499, 506).

Defendant was not entitled to a hearing regarding suppression of the drugs he secreted near a gate in a public area, since he failed to make sufficient factual assertions (see, CPL 710.60 [1], [3]; People v Gomez, 67 NY2d 843; see also, People v Ramirez-Portoreal, 88 NY2d 99).

We have considered and rejected defendant’s remaining arguments. Concur — Tom, J. P., Ellerin, Rubin, Saxe and Buckley, JJ.