People v. Lara

• Decision Date: 20 December 1993
• Citation: 199 A.D.2d 419,605 N.Y.S.2d 339
• Parties: The PEOPLE, etc., Respondent, v. Fidel LARA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 339

605 N.Y.S.2d 339

199 A.D.2d 419

The PEOPLE, etc., Respondent, v. Fidel LARA, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 20, 1993.

Joseph V. DiBlasi, Kew Gardens (Steven R. Bernhard, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie and Gary Fidel, of counsel; William R. Horwitz, on the brief), for respondent.

Before COPERTINO, J.P., and PIZZUTO, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered June 15, 1989, convicting him of criminal possession of a controlled substance in the first degree, failure to obey a traffic control signal, and reckless driving, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established.

The defendant claims that the trial court should have suppressed the six and one-half ounce bag of cocaine which was seized from the passenger floor of his car. Contrary to the defendant's contention, once the police officer saw a bag containing white powder, which he believed to be cocaine, being tossed by the defendant to the floor on the passenger side of the car, the officer had probable cause to arrest the defendant (see, People v. Rudasil, 43 N.Y.2d 789, 402 N.Y.S.2d 392, 373 N.E.2d 286; People v. Jackson, 41 N.Y.2d 146, 150, 391 N.Y.S.2d 82, 359 N.E.2d 677; People v. Lemmons, 40 N.Y.2d 505, 508-09, 387 N.Y.S.2d 97, 354 N.E.2d 836; People v. Manganaro, 176 A.D.2d 354, 355, 574 N.Y.S.2d 587). The hearing court heard and saw the witnesses, and great deference should be given to the hearing court's determination regarding issues of credibility (see, People v. Harris, 134 A.D.2d 369, 520 N.Y.S.2d 847). In this case, the hearing court credited the testimony of the officer and it discredited the defendant's testimony. The defendant has not provided any reason to disturb the hearing court's determination, which is supported by the record.

Nonetheless, we do find merit to the defendant's claim that the Supreme Court committed reversible error when, after the jury sent a note indicating that it had reached an impasse, the court sent a message, through a captain, that the jury was "to still deliberate". The defendant's failure to raise specific objections to the trial court's conduct does not preclude appellate review as a matter of law in this case, since errors which affect the organization of the court or the mode of proceedings prescribed by law need not be preserved (see, People v. Jones, 159 A.D.2d 644, 644-645, 553 N.Y.S.2d 37; see also, People v. Coons, 75 N.Y.2d 796, 552 N.Y.S.2d 94, 551 N.E.2d 587; People v. Mehmedi, 69 N.Y.2d 759, 760-61, 513 N.Y.S.2d 100, 505 N.E.2d 610; People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894). An instruction to continue deliberations when the jury has indicated an inability to reach a verdict is not a mere "ministerial" matter (see, People v. Torres, 72 N.Y.2d 1007, 1008-1009, 534 N.Y.S.2d 914, ...