People v. Bailey

• Decision Date: 22 May 1995
• Citation: 215 A.D.2d 676,628 N.Y.S.2d 291
• Parties: The PEOPLE, etc., Respondent, v. Samuel BAILEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 291

628 N.Y.S.2d 291

215 A.D.2d 676

The PEOPLE, etc., Respondent, v. Samuel BAILEY, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 22, 1995.

Daniel L. Greenberg, New York City (M. Kilburg Reedy, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie and Barbara Thomashower, of counsel), for respondent.

Before BALLETTA, J.P., and O'BRIEN, THOMPSON and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered May 21, 1993, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the hearing court properly found that the police had probable cause to arrest the defendant. The hearing testimony reveals that, on the night of July 15, 1992, Police Officer Mark McCormick, an officer with more than five years of experience and who was familiar with narcotics, observed the defendant hand a small, white packet described as a glassine envelope to another man in exchange for some United States currency in a location where narcotics were known to be sold. When the defendant saw the officer and his partner exit their motor vehicle, he attempted to flee. Officer McCormick apprehended the defendant after a brief chase. Officer McCormick then arrested the defendant and recovered five packets of cocaine labeled "one way" from the defendant's pocket. Under the totality of the circumstances of this case, there was sufficient information to lead a reasonable person who possessed the same expertise as Officer McCormick to conclude that a crime was being committed (see, People v. McCray, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015; People v. McLeod, 161 A.D.2d 671, 555 N.Y.S.2d 445; People v. Zarzuela, 141 A.D.2d 788, 529 N.Y.S.2d 864).

We do not agree with the defendant that an adverse inference charge was required due to the unavailability of a label that had been prepared by a chemist and that had been affixed to a sample of the cocaine that had been used for testing. The label was destroyed...