People v Rosario (2010 NY Slip Op 51045(U))

People v Rosario

2010 NY Slip Op 51045(U) [27 Misc 3d 1235(A)]

Decided on June 17, 2010

Supreme Court, Bronx County

Duffy, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Defendant Radames Rosario was charged in the above-referenced indictment with Criminal Sale of a Controlled Substance in the Third Degree, PL 220.39(1), Attempted Criminal Facilitation in the Fourth Degree, PL 110/115.00(1), and Criminal Facilitation in the Fourth Degree, PL 115.00(1).

On July 20, 2009, Defendant filed an omnibus motion seeking, among other things, to have the Court: (1) dismiss or reduce the indicted charges for legal insufficiency, (2) release the grand jury minutes to Defendant; (3) suppress any physical evidence seized from the Defendant, (4) suppress any in court identification of Defendant based on an unduly suggestive out of court identification, (5) suppress any statements of the Defendant, and (6) prevent the People from introducing any previous criminal convictions or bad acts of Defendant if Defendant were to testify.

In his omnibus motion to suppress any identification of Defendant and statements and physical evidence, Defendant contends that the police did not have probable cause to stop and search him and thus, no basis to place him under arrest, and asks this Court to suppress the identification and any statements allegedly made by Defendant as tainted fruit of the illegal arrest, as well as any physical evidence, and to preclude evidence of any prior convictions of Defendant at trial.

Defendant also contends that the identification of him was unduly suggestive and thus any identifications based on that out of court identification should be suppressed. [*2]

In a Decision filed on September 2, 2009, the Honorable Robert Holdman granted, in part, and denied, in part, Defendant's motion. Judge Holdman denied Defendant's motion to dismiss or reduce the charges in the indictment or to release the grand jury minutes to Defendant, but granted Defendant's motion for a Gethers hearing as to the confirmatory identification of Defendant and a Mapp hearing as to the admissibility of the physical evidence, and also ordered a Dunaway hearing on the issues of suppression of the identification, statements and evidence. The Court also reserved the Sandoval issue as to Defendant to the trial court.

On June 9, 2010, this Court held the combined Gethers-Mapp-Dunaway hearing. With respect to Defendant's motion to suppress any 710.30 statements, the People have stipulated that they are not seeking to introduce any such statements. Accordingly, the Court denies that portion of Defendant's motion as moot.

FINDINGS OF FACT

As set forth below, based upon the credible testimony of Sergeant Edward Wynn, Shield Number 226 of the Bronx Narcotics Unit, the Court finds that there was reasonable suspicion to stop, detain and arrest Defendant. The probable cause was the purchase of drugs by an undercover officer — referred to during the hearing as UC CO148 — from the Defendant, acting together with a co-defendant Lorenzo Reid.^[FN1] Accordingly, probable cause existed for the arrest and subsequent search of Defendant.

Sgt. Wynn credibly testified that on February 12 and February 17, 2009, he was part of an anti-crime team, consisting of approximately nine undercover police officers and plain clothes police officers, assigned to investigate complaints of significant drug activity at a bodega located at 1309 Clinton Avenue in the Bronx. Sgt. Wynn testified that, as part of the investigation, UC CO148 was assigned to participate in a "buy and bust" operation at that bodega.

With respect to February 17, 2009, Sgt. Wynn testified that, at approximately 3:45 p.m., UC CO148 was wearing a KELL transmitter which transmitted his conversations to Sgt. Wynn via a KELL receiver that was in Sgt. Wynn's unmarked police car in the vicinity. Sgt. Wynn testified that, at the time of these events, he was in the area in an unmarked police vehicle which was equipped with that KELL receiver which allowed Sgt. Wynn to overhear all the conversations that UC CO148 engaged in at that time.

Sgt. Wynn also testified that, during that same time period, another undercover officer — Detective Milton — was following UC CO148 as a "ghost." Sgt. Wynn explained that a "ghost" is a plain clothes police officer who follows the undercover and, in this case, communicated to Sgt. Wynn via cellular telephone transmission a description of anyone with whom the first undercover officer (UC CO148) engaged.

Sgt. Wynn testified that, on February 17, 2009, he observed UC CO148 enter the bodega at 1309 Clinton Avenue in the Bronx and overheard (via the KELL [*3]transmission) UC CO148 engage in a lengthy discussion with someone in the store. Thereafter, UC CO148 exited the store. Sgt. Wynn testified that he then received a communication via cellular telephone that UC CO148 had just purchased drugs in the bodega from two individuals with $40.00 of pre-recorded buy money. Sgt. Wynn testified that he then received a description of the two individuals who had conducted the sale of the narcotics: one was a male, black individual wearing a bright green jacket; the other was a male Hispanic wearing a dark bubble jacket. (Sgt. Wynn testified that Defendant was the second person described by the ghost).

Sgt. Wynn testified that upon receiving the information, he contacted the other members of the field team and informed them that a "positive buy" had occurred and they waited for UC CO148 to leave the location before going to the premises. Sgt. Wynn testified that after Det. Milton informed him that one of the suspects exited the bodega, Sgt. Wynn then exited his vehicle and moved toward that suspect, and, when the person began to flee, Sgt. Wynn chased him on foot. Sgt. Wynn testified that, while running behind the suspect, he observed the individual attempting to put small objects into his mouth but the objects fell to the ground. Sgt. Wynn testified that two other officers chased and then apprehended that suspect while Sgt. Wynn went to retrieve the items the individual had dropped to the ground. Sgt. Wynn testified that he retrieved two items which, based upon his training and experience as a police officer, he believed to be crack/cocaine. He said that one of the two items was a "twist of crack" and the other was a "ziplock of crack."

Sgt. Wynn testified that he then immediately went back to the store and entered it and observed Defendant who matched the description of one of the individuals to be at the rear of the store.

Sgt. Wynn testified that he recognized Defendant because, several days earlier, on February 12, 2009, he had observed and overheard (via KELL transmission) Defendant interact with UC CO148 at that general location. Sgt. Wynn testified that on February 12 he had observed UC CO148 and Defendant walk on Boston Road which is around the block near the bodega and overheard a lengthy conversation between UC CO148 and the Defendant — all of which was in Spanish.

Sgt. Wynn testified that on February 17, 2009, at the time of this incident, except for a person who identified himself as Defendant's son, Defendant and the other apprehended individual Lorenzo Reid had been the only persons in the bodega. Sgt. Wynn testified that, at that time, the police officers escorted Defendant and the other suspect outside the store and called UC CO148 to verify whether the two individuals were the persons from whom UC CO148 had purchased the drugs. Sgt. Wynn testified that UC CO148 thereafter viewed the suspects via a "drive by" of the location and called the field team to confirm that those two suspects — Defendant and co-defendant Lorenzo Reid — were the two persons who had sold him the drugs.

Sgt. Wynn testified that Defendant was then placed under arrest and searched and that Defendant was found to have $1,345.00 in US currency on his person. Sgt. Wynn testified that he thereafter separately vouchered the drugs he had recovered from co-defendant Reid and the money recovered from Defendant.

CONCLUSIONS OF LAW

Upon consideration of the evidence and testimony presented, the Court finds [*4]that there was probable cause to arrest Defendant. At the time the police entered the bodega, they already had received information from UC CO148 that two individuals in the bodega had sold him drugs. They also had received a radio description from the "ghost" undercover officer of the two individuals who had sold the drugs to UC CO148. Sgt. Wynn also was informed that one suspect matching the description left the bodega and fled and Sgt. Wynn observed him, and then, along with other officers, Sgt. Wynn chased him on foot; the other suspect remained in the bodega. Sgt. Wynn credibly testified that, not only was Defendant the only person in the store who matched one of the descriptions given to them by the ghost — male, Hispanic with a dark bubble jacket — there was only one other individual in that store (after the co-defendant had left) and that person did not fit either description. Moreover, Sgt. Wynn testified that he recognized Defendant as the person with whom UC CO148 had been interacting on February 12, 2009.

UC CO148's communication to Sgt. Wynn and the ghost — Det. Milton — that Defendant had sold him drugs and the fact that Defendant matched the description of one of the individuals who had sold him drugs constitutes probable cause for Defendant's arrest. People v. Concepcion, 655 NYS2d 921, 927 (Sup. Ct., Bronx Co. 1997) (detailed radio transmissions of undercover regarding drug buy, coupled with actual visual observations by arresting officers establish probable cause); People v. Rampersant, 272 AD2d 202, 203 (1st Dept. 2000) (observing officer's transmission established probable cause for arrest, particularly considering the very close temporal and spatial proximity of the sale and arrest), app. denied, 95 NY2d 870 (2000).

Accordingly, as probable cause existed for the arrest, any motion to suppress the money recovered from Defendant during the search incident to the arrest and identification of Defendant on the basis that they were obtained as a result of an illegal arrest is denied. People v. Cooper, 38 AD3d 678, 679 (2nd Dept. 2007); People v. Garcia, 281 AD2d 234, 234 (1st Dept.), app. denied, 96 NY2d 734 (2001); People v. Williams, 245 AD2d 379, 380 (2nd Dept. 1998).

Likewise, Defendant's motion to suppress the identification by the undercover officer which was confirmatory in nature is denied for the reasons set forth below.

With respect to the identification of Defendant, as an initial matter, where, as here, an arrest is valid, there is no cause for suppression of the resulting confirmatory identification of the suspect. See People v. Gethers, 86 NY2d 159 (1995). Moreover, even if the identification by UC CO148 could be viewed as anything other than confirmatory, which it could not, it is evident from Sgt. Wynn's testimony that there was no suggestivity as to the identification procedure. The viewing by the trained police officer "occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure." People v. Wharton, 74 NY2d 921, 922-23 (1989). UC CO148's confirmatory identification of Defendant as one of the two people who had sold him drugs has all the Wharton assurances of reliability in that UC CO148: (1) transacted business with Defendant knowing Defendant would be arrested shortly thereafter; and (2) identified Defendant shortly after the transaction. Id. at 923; see also People v. Matos, 83 NY2d 406 (1994).

The following papers also were considered by the Court in deciding the motion: [*5]Notice of Motion, filed July 20, 2009, and Affirmation of Jamal Johnson, Esq., attorney for Defendant, in Support of Motion; Affirmation in Opposition, filed August 11, 2009, by Terry Gensler, Esq., Assistant District Attorney.