People v. Hernandez
| Decision Date | 14 January 1993 |
| Citation | 189 A.D.2d 634,592 N.Y.S.2d 331 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Eufemio HERNANDEZ, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and CARRO, MILONAS and KUPFERMAN, JJ.
Judgment, Supreme Court, New York County (James J. Leff, J., at hearing and trial), rendered March 8, 1991, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.
The hearing court correctly denied defendant's motion to suppress physical evidence. In this typical "buy and bust" operation, the sole witness at the suppression hearing was the arresting officer, who testified that he apprehended defendant after receiving a message from the undercover officer's "ghost" that the latter had received the prearranged positive buy signal from the undercover. In addition, the ghost, whose purpose was to observe any buys and safeguard the undercover, transmitted a detailed description of defendant and his location. The arresting officer apprehended defendant, who matched the description, at that location.
This testimony was sufficient to establish probable cause for the arrest, and, contrary to defendant's contention, the testimony of the ghost was unnecessary in view of the arresting officer's testimony that he relied on information from another officer who personally observed the transaction (People v. Petralia, 62 N.Y.2d 47, 51-52, 476 N.Y.S.2d 56, 464 N.E.2d 424; cert. denied 469 U.S. 852, 105 S.Ct. 174, 83 L.Ed.2d 109; People v. James, 135 A.D.2d 832, 522 N.Y.S.2d 935, lv. denied 71 N.Y.2d 969, 529 N.Y.S.2d 81, 524 N.E.2d 434). In addition, the contents of the message transmitted by the ghost, upon which the arresting officer relied, were elicited on the record and plainly provided sufficient detail to establish probable cause. The fact that a prearranged positive buy signal was employed, rather than verbal communication, is irrelevant, since such a signal was adequate to convey that a sale took place (People v. Amoateng, 141 A.D.2d 398, 529 N.Y.S.2d 489, lv. denied 73 N.Y.2d 852, 537 N.Y.S.2d 499, 534 N.E.2d 337).
The failure of the trial court to impose any sanction for the destruction of an envelope on which the arresting officer noted defenda...
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