Defendant's motion to reargue is granted. Defendant's arrest was not supported by probable cause and any physical evidence obtained by the police as a result the arrest is suppressed.

PL 220.03Criminal Possession Of A Controlled Substance

On March 17, 2010, the court held a combined Mapp/Dunaway hearing and issued a written decision, dated April 28, 2010, denying Defendant's motion to suppress a twist of crack cocaine. Defendant contended that his arrest was not supported by probable cause. The court held defendant's arrest was supported by probable cause, the search and evidence recovered was lawful. In its decision, the court determined that probable cause was established by the observation of the police officer, trained in narcotic sales and identification, who witnessed the narcotics exchange between defendant and another person in a drug-prone location. Accordingly, the court denied defendant's motion.

On April 28, 2010, defense counsel served and filed a notice of motion to reargue and the People's responded to defendant's motion to reargue on June 28, 2010. Upon consideration of defendant's motion to reargue, the court grants the motion. A motion to reargue is granted only if it is "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion ..." (see CPLR 2221(d)(2); see also Andrea v E.I. DuPont de Nemours Co., 289 AD2d 1039, 1040-1041 [4th Dept. 2001], app. denied, 97 NY2d 609 [2001).

Upon reconsideration of the facts and relevant case law, defendant's underlying suppression motion is granted as follows.

At the suppression hearing, the People called two witnesses New York City Police Department Police Officer Adam Katrincic, Shield No. 18559, 73rd Precinct, Brooklyn, New York, and Police Officer Gabriel Echevarria, Shield No. 2849, 73rd Precinct. Defendant did not call any witnesses.

Officer Katrincic testified he has been a police officer for four and half years. For the past two and one-half years, he has been assigned to the Street Narcotics Enforcement Unit (SNEU). He has received training in how to observe sales and the identification and packaging of narcotics. Officer Katrincic testified that he has been involved in making over 250 drug-related arrests, and with his team, he has made over 1,500 arrests.

Officer Echevarria testified he has been a police officer for four and a half years. He has been assigned to the SNEU for the last two and one-half years. He has received narcotics training in how to identify narcotics and what to look for in terms of transactions. Officer Echevarria testified that he has made approximately 300 drug related arrests.

On February 17, 2009, both officers were working the 2:00 p.m. to 10:35 p.m. tour. Officer Katrincic testified he and his partner, Officer Jay Cutler, were working on the observation team. They were in plainclothes seated inside of an unmarked surveillance van. Their task was [*3]to set up at a location known for drug dealing and then watch for drug transactions. On that day, they were assigned to East 98th Street and Newport Street.

Officer Echevarria testified that he and his partner, Officer Gloragille, were working on the apprehension team. Their function was to receive radio descriptions from the observation officer of an individual to be apprehended. Officer Katrincic testified he observed a drug transaction involving the defendant and another individual in which the defendant exchanged United States currency for a small object that appeared, based on his training and experience, to be narcotics. Officer Katrincic testified that he radioed the description of the buyer to Officer Echevarria.

Officer Echevarria testified the defendant boarded a New York City Transit Bus. The officer stopped the bus approximately one block from the location. Officer Echevarria then testified he escorted the defendant off the bus. After searching the defendant, he recovered a rocky substance from the defendant's pocket. Officer Echevarria further testified that based on his training and experience he believed the substance was crack cocaine. At that point, Officer Echevarria arrested the defendant. The substance was later tested positive for crack cocaine.

Defendant's motion to reargue relates to the three factors outlined in People v McRay (51 NY2d 594, 605). The McRay court outlined these three factors for consideration when determining whether probable cause exists in drug possession cases. Specifically, those factors are (1) evidence of the experience of the arresting officer, (2) evidence that the encounter take place in a "drug-prone" location, and (3) evidence of "telltale signs" of illicit drug activity, such as furtive or evasive gestures or actions on the part of the participants. Defense counsel centers his argument on the missing factors two and three but does agree the officers possessed the training and experience required by factor number one. Defense counsel argues that without any evidence or proof that the location is a "drug-prone" area, then the officer's testimony characterization the location as such is conclusionary. Defense counsel further argues there were no facts of any "telltale signs" of illicit drug activity by the participants of the transaction.

The People, on the other hand, argue that the reputation of an area for known drug activity is but one factor among the "totality of the circumstances" to look at when determining probable cause. The court notes that even while the People argue for "totality of the circumstances", they simultaneously admit there was no testimony by the officers about previous drug-related arrests in the area or any other indicia that the neighborhood was a "drug-prone" area. The People also agree there was no evidence of any "telltale signs" of illicit drug activity. Alternatively, the People argue (1) the officer's experience and training in narcotics investigation and (2) the transfer of money in exchange for an object believed by the officer to be narcotics when taken as a whole establish probable cause.

Here, the court finds that the "totality of the circumstances" test fails to establish probable [*4]cause. In absence of the two additional factors recognized in McRay, that is the location is in a "drug-prone" area and "telltale signs" of criminal activity, probable cause does not exist in this case. The court further finds that even though an experienced officer, trained in narcotics investigation and identification, observed the transaction involving an exchange of money, it is not sufficient in and of itself to support a finding of probable cause. In absence of facts supporting the officers' testimony that the location is a drug-prone area, such statement is consclusionary and probable cause cannot be established upon non-factual conclusionary statements. Further, in absence of any kind of furtive or suspicious behavior by the participants, there is no way the officers could tell whether the transaction was illegal or not. Thus, based on the foregoing analysis, the court finds the People have failed to meets its burden of proving the legality of police conduct in this case.

For the foregoing reasons, the defendant's motion to reargue is granted in its entirety. The court finds defendant's arrest was not supported by probable cause and any evidence recovered from the defendant is suppressed.

The foregoing constitutes the decision and order of the court.

________________________________Gerri PickettJudge of the Criminal Court

Dated: Brooklyn, New YorkJuly 15, 2010