The following constitutes the opinion, decision and order of the court.

A superceding indictment was filed charging the defendants with one count of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the third degree. Defendant Staten made an omnibus motion seeking, inter alia, the suppression of certain evidence. That motion was granted ordering a Gethers ^[FN1]/Huntley/Dunaway hearing. After a discussion on the record, the People consented to a Gethers/Mapp/Dunaway hearing as to both defendants.

Giving full credence to the testimony of the People's witnesses, I make the following findings of fact.

Police Officer Ricardo Bocachica testified that he is a Bronx Narcotics Officer. On January 28, 2005, at approximately 9:30 P.M., he was a member of a field team which was conducting an operation inside a multiple dwelling located at 1314 Seneca Avenue in Bronx County. All of the officers were in plain clothes. Specifically, a member of his team, Police Officer Leniece Akins, was set up at an observation post for the purpose of observing any drug-related activity. Officer Bocachica identified the defendants in this case as the two persons apprehended at that location. He testified further that he and Police Officer Hector Fuentes received a communication through a Nextel device from "observing officer" Akins of a "positive buy," whereupon he and Officer Fuentes proceeded down a flight of steps leading to the lobby of the building, and encountered the two defendants, who were at the same time running up the same staircase. The defendants attempted to turn around, fell, and were immediately apprehended on the stairway. The sum of $287 in United States currency was recovered from the person of defendant Staten.

Officer Bocachica testified that he did not see Officer Akins in the lobby until after he had handcuffed the defendants and brought them down into the lobby area, nor did he recall the description of the perpetrators contained in Officer Akin's transmission. He further testified that Officer Akins directed him to an apartment which Officer Akins had earlier seen defendant Gomez entering. Officer Bocachica described the unlocked apartment as "abandoned;" "gutted, [*2]like if there was a lot of construction being done;" "destroyed;" and "completely wrecked." From the pants pocket of a pair of jeans lying on the floor immediately inside this apartment, Officer Bocachica recovered 48 bags of crack.

The People also submitted the testimony of Officer Fuentes. Officer Fuentes, consistent with the testimony of Officer Bocachica, testified that he was part of the apprehension team; that he "moved in" after Officer Akin's Nextel transmission of a "positive buy;" and that the defendants were apprehended on the staircase. He testified that $389 in U.S. currency was recovered from defendant Gomez. Officer Fuentes recalled that Officer Akin's Nextel communications had indicated that there had been an observed sale of a controlled substance, and contained detailed descriptions of the defendants, but Officer Fuentes could not recall any of the particulars of those descriptions, although he asserted that the defendants met the description at the time he first observed them. He testified unequivocally that the first time he saw Officer Akins following the apprehension of the defendants was in the lobby, after the defendants had been handcuffed.

Following an application by the defendants to call Officer Akins as a witness at the hearing,^[FN2] the People called her as a witness. Officer Akins testified that on January 28, 2005, she was acting as the "observing officer," with respect to a field operation investigating complaints of rampant drug dealing in the lobby of the subject premises. From her vantage point at the top of a stairwell, she observed Stanley Majors (who was subsequently apprehended) enter the building lobby. A separately charged individual directed Majors to defendant Staten, at which time Majors handed currency to Staten. Defendant Staten took the money, and directed Majors to defendant Gomez. After a brief conversation with Majors, defendant Gomez ran up one of the staircases, entered an apartment, and returned a few seconds later with an object, which defendant Gomez handed to Majors. At that point Officer Akins radioed her team that a "buy" had occurred, describing defendant Gomez as wearing a skull cap with his hair sticking out, a dark gray sweater, dark jeans and gray boots, and describing defendant Staten as wearing a red and black "hoody," gold-colored boots and dark jeans.^[FN3] Officer Akins testified that moments following the apprehension of the defendants, which she did not observe, she identified the defendants as the persons involved in the alleged sale.

At the hearing, the defendants requested that the observing officer be called as a witness, arguing that the People were unable to meet their burden of establishing probable cause without his testimony. That witness was called by the People after argument on the record, at which time the court stated that it was prepared to rule that the People had not met their burden in the first instance of establishing probable cause for the arrest of the defendants. The Court's reasoning, [*3]which was set forth on the record, is reiterated below.

Under the fellow officer rule, a police officer can make a lawful arrest, even without personal knowledge sufficient to establish probable cause, if the officer is acting upon a communication with a fellow officer who has information sufficient to constitute probable cause for the arrest. In the context of a "buy and bust" operation or an "observed" sale of controlled substances, probable cause has been established at suppression hearings solely through the testimony of a police officer who (while he or she did not observe defendant engage in alleged criminal conduct) acted upon communications from an officer who had witnessed the alleged criminal conduct. (See People v. Petralia, 62 NY2d 47, 476 NYS2d 56, 464 NE2d 424 [1984]; People v. Maldonado, 86 NY2d 631, 635 NYS2d 155, 658 NE2d 1028 [1995]; People v. Washington, 87 NY2d 945, 641 NYS2d 223, 663 NE2d 1253 [1996]; People v Ketcham, 93 NY2d 416, 690 NYS2d 874, 712 NE2d 1238 [1999]; People v. Jones, 95 NY2d 721, 746 NE2d 1053, 723 NYS2d 761 [2001].)

For example, in People v. Ketcham, supra , a Mapp/Dunaway hearing was held to determine the admissibility of the currency and other property recovered from defendant at the time of his arrest, subsequent to a "buy and bust" operation. Officer Nardi, the apprehending officer, testified that the "ghost" officer radioed him that there had been a "positive buy" at "Stone and Sutter." The ghost officer, in addition, provided a detailed description of the suspect. Although there was no direct evidence regarding the ghost's basis of knowledge, the suppression court could permissibly infer from Officer Nardi's testimony that the ghost officer's information was obtained from first-hand observation. Under these circumstances, suppression was properly denied .

Consequently, in a typical case the People will attempt to establish probable cause for the defendant's arrest based solely on the testimony of the apprehending officer ^[FN4] that the information transmitted to him or her by the observing officer contained a report of a criminal transaction, a description of the seller and the seller's location. (See, e.g., People v. Hartman, 294 AD2d 446, 744 NYS2d 38 [2d Dept. 2002]; People v. Ray, 28 AD3d 220, 813 NYS2d 371 [1st Dept. 2006] ["In this observation sale case, the People established probable cause through the arresting officer's testimony that she acted in response to information she received from the eyewitness officer, who radioed words stating that he had seen a drug transaction in which defendant was the buyer, and provided defendant's location and a detailed description."]). The apprehending officer will then usually testify that he or she arrested the defendant at the time and place of the occurrence, and that the appearance of the defendant matched the description which had been transmitted by the fellow undercover officer.

The People nevertheless argued that a prima facie case was established in the instant case in that: the two apprehending officers testified that the observing officer transmitted a report that a sale had been observed; the observing officer provided a description of the defendants; and even though the apprehending officers could not recall any of the particulars of the descriptions which had been transmitted, it was sufficient for the apprehending officers to state that they [*4]recalled that the defendants matched the otherwise unarticulated description. No case was cited in support of the People's position, and no case has been located which indicates that a mere recitation that a detailed description was sent, without any evidence of the content of the description, establishes probable cause to arrest. Indeed, logic would dictate that the proof of the content of the description is essential in determining the lawfulness of the arrest. As was stated in People v. Jones (95 NY2d 721, 746 NE2d 1053, 723 NYS2d 761 [2001]), which involved the adequacy of defendant's written allegations in support of a motion to suppress in a "buy-and-bust" case, but which is nevertheless applicable in the present context:

Deficiencies in the description furnished to an arresting officer may provide the basis for suppression. In People v Dodt (61 NY2d 408, supra ), this Court held that, when presented with a warrantless arrest based upon a teletype description of the suspect, a "reviewing court must be supplied with the description upon which the police acted and sufficient evidence to make its own independent determination of whether the person arrested ... reasonably fit that description" and thus constituted probable cause (id., at 415). Here, of course, the arrest was based on the undercover's radio communication to a fellow officer. The theory for suppression in this case was not that the undercover officer would not have had probable cause to arrest defendant (see, People v Ketcham, 93 NY2d 416, 420-421). Rather, the motion challenged whether the undercover adequately described defendant to meet constitutional and statutory standards in directing the arrest by another officer. As pointed out in Dodt, had the arrest been made upon a warrant applied for by the undercover, it would have required a " 'description by which he [could] be identified with reasonable certainty' (CPL 120.10, subd 2)" (id., at 415; see also, US Const 4th Amend). The same requirement must be met in a warrantless arrest when a person is seized pursuant to a communication to the arresting officer (see, id.). Since, under Dodt, it is clearly possible to establish the unlawfulness of an arrest based solely upon the inadequacy of a description transmitted to the arresting officer, by a parity of reasoning it must also be possible for defendant here to challenge successfully the sufficiency of the description upon which he was detained and arrested without also denying participation in the sale. For the foregoing reasons, we conclude that the motion court erred in holding that the defendant's failure in this case specifically to deny his role in the drug sale justified summary denial of his application. (Emphasis added.)

This court notes, in addition, that there was no evidence that Officer Akins was present and observing the actual apprehension in such a manner that it might be found that she directed the apprehension of these two particular defendants. This case is thus distinguishable from People v. Mims (88 NY2d 99, 643 NYS2d 502, 666 NE2d 207 [1996]), in which the suppression hearing testimony established that the observing officer witnessed a sale of controlled substances from a rooftop observation post; the arresting officer and the observing officer left the rooftop post together, and drove around the block in the same car; and the arresting officer apprehended the defendant immediately upon exiting the vehicle. The court inferred that the observing officer had communicated a direction to arrest the defendant to the arresting officer, since there was no other possible explanation as to why the arresting officer, who had not witnessed the sale, and had no knowledge of the defendant's location or description, would have arrested the defendant.

As was made clear in People v. Gethers (supra ), when the People fail to establish [*5]probable cause to arrest the defendant based on the observing officer's failure to establish the description transmitted (whether due to an inability to recall the facts accurately or otherwise), and the observing officer is not called to testify, the observing officer's on-the-scene confirmatory identification must be suppressed as a product of the illegal arrest. If this court were to hold that testimony of an undisclosed description was sufficient to establish probable cause, then the mere recitation by a police officer that a detailed description was received, and that the defendant matched that description, would effectively insulate the sufficiency of the description from judicial scrutiny while automatically supporting a finding of probable cause.

Consequently, this court ruled, in accordance with defendants' request to call the observing officer as a witness, that it would be necessary for the People to introduce the testimony of Officer Akins.

Determination of the Motion to Suppress

Both defendants seek the suppression of identification testimony as well as the money recovered from the person of the defendants. Defendant Gomez, in addition, seeks the suppression of the drugs found in the apartment subsequent to the apprehension of the defendants.

The People have the burden in the first instance of going forward to establish the legality of the police conduct. The defendant bears the ultimate burden of proving by a preponderance of the evidence that the evidence should be suppressed. A finding of probable cause requires the existence of facts and circumstances which, when viewed together, would lead a reasonable person, to conclude: (1) that an offense has been or is being committed, and (2) that the person to be arrested is the perpetrator. (People v. Javier, 175 AD2d 182, 572 NYS2d 69 [2d Dept. 1991]).

Based on the testimony of Officer Akins and the other officers, I find that this experienced police officer's observation of a hand-to-hand transaction involving the defendants at a location known for narcotics trafficking, under all of the attendant circumstances, provided a valid legal basis for the forcible detention and arrest of the defendants. (People v. Powell, 32 AD3d 544, 820 NYS2d 324 [2d Dept. 2006]). Moreover, the description of the defendants provided by Officer Akins was sufficiently detailed to satisfy constitutional concerns. The property recovered from the persons of the defendants was therefore properly recovered incident to the lawful arrest of the defendants.

The court finds that the defendant Gomez lacks standing to seek suppression of the controlled substances found in the apartment. While there was some evidence that the defendant Gomez might have been living in the building or had been visiting on a prior occasion, there is no evidence that the defendant occupied the apartment, had a lease to the apartment, had a familial relationship with the lawful resident, or had any other lawful connection to the apartment. Consequently, there is no evidence that the defendant had any possessory or proprietary interest in the property seized or the area searched. Based on the description of the apartment as unlocked, unoccupied, and so physically "destroyed" that it was unfit for human occupancy, the Court finds that the apartment was abandoned, and that defendant Gomez had no legitimate expectation of privacy therein. (People v. Casado, 199 AD2d 845, 606 NYS2d 366 [3d Dept. 1993] [defendant did not have any expectation of privacy to challenge the search of an [*6]apartment in which he was present; defendant admitted ownership of a duffel bag which was searched and found to contain controlled substances, but denied ownership of the contents of the bag]; People v. Benn, 172 AD2d 756, 569 NYS2d 142 [2d Dept. 1991] [no expectation of privacy in empty, "burned-out" bungalow]; People v. Rodriguez, 69 NY2d 159, 513 NYS2d 75, 505 NE2d 586 [1987] [defendant whose only relationship with a Bronx apartment was that his drug supplier resided there, and whose sole purpose for being there was to obtain heroin, did not have standing to contest a search of that apartment]; People v. Ayers, 214 AD2d 459, 625 NYS2d 206 [1st Dept. 1995] [no reasonable expectation of privacy in the abandoned, vacant apartment]).

The People have met their burden. The motions to suppress are, in all respects, denied.

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