People v. Montano

• Decision Date: 26 September 1994
• Citation: 207 A.D.2d 913,616 N.Y.S.2d 775
• Parties: The PEOPLE, etc., Respondent, v. Santiago MONTANO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 775

616 N.Y.S.2d 775

207 A.D.2d 913

The PEOPLE, etc., Respondent, v. Santiago MONTANO, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 26, 1994.

Sol Lefkowitz, Glen Cove, for appellant.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and Peter Shapiro, of counsel), for respondent.

Before ROSENBLATT, J.P., and MILLER, RITTER and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Goodman, J.), rendered January 19, 1993, convicting of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress statements made by the defendant to law enforcement officials and physical evidence.

ORDERED that the judgment is affirmed.

During the Mapp/ Huntley hearing, the court properly credited the straightforward and uncontradicted testimony of the undercover police officers (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Gonzalez, 184 A.D.2d 525, 526, 584 N.Y.S.2d 180; People v. Perkins, 177 A.D.2d 720, 721, 577 N.Y.S.2d 89). In light of the testimony by an experienced undercover officer who observed the defendant pass a plastic object to a woman in exchange for cash in a location known for drug trafficking, the court properly determined that there was probable cause to arrest the defendant and that the search was incident to the defendant's arrest (see, People v. McRay, 51 N.Y.2d 594, 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015; People v. Lypka, 36 N.Y.2d 210, 213, 366 N.Y.S.2d 622, 326 N.E.2d 294; People v. Malsh, 188 A.D.2d 686, 590 N.Y.S.2d 923; People v. Matienzo, 184 A.D.2d 296, 585 N.Y.S.2d 204, affd 81 N.Y.2d 778, 593 N.Y.S.2d 785, 609 N.E.2d 138; People v. Brown, 151 A.D.2d 199, 203, 547 N.Y.S.2d 909; People v. Bittner, 97 A.D.2d 33, 35-37, 468 N.Y.S.2d 508).

The court also properly determined that the defendant's statement to another undercover officer was spontaneous, as the officer did not say anything to the defendant and there was no evidence that the officer should have known that his conduct of retrieving vials from the defendant's person during a pat-down and his display of the vials would have prompted him to say "they're not mine" (see, People v. Bryant, 59 N.Y.2d 786, 788, 464 N.Y.S.2d 729, 451 N.E.2d 476, rearg dismissed, 65 N.Y.2d 638, 491 N.Y.S.2d 1029, 480 N.E.2d 751; People v. Hylton, 198 A.D.2d 301, 603 N.Y.S.2d 560). We find that the trial court did not improvidently exercise its discretion in its Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413; see also, People v. Greer, 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Ramirez, 206 A.D.2d 491, 614 N.Y.S.2d 746 [2d Dept., 1994]; People v. Pegram, 191 A.D.2d 719, 595 N.Y.S.2d 520; People v. McClainin, 178 A.D.2d 495, 577 N.Y.S.2d 425; People v. Dunn, 203 A.D.2d 962, 612 N.Y.S.2d 1001 [4th Dept., 1994]; People v. Roman, 190 A.D.2d 831, 593 N.Y.S.2d 828, affd 83 N.Y.2d 866, 611 N.Y.S.2d 829, 634 N.E.2d 201).

Contrary to the defendant's contention, legally sufficient evidence of his intent to sell could be inferred from his possession of a substantial quantity of cocaine (see, Penal Law § 220.16[1]; People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808; People v. Sanchez, 205 A.D.2d 472, 613 N.Y.S.2d 912 [1st Dept., 1994]; People v. Clanton, 204 A.D.2d 810, 612 N.Y.S.2d 83 [3d Dept., 1994].

We decline to reduce the defendant's sentence in the interest of justice (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are either unpreserved for appellate review...