People v. Olivo
| Decision Date | 11 January 1993 |
| Parties | The PEOPLE, etc., Respondent, v. Luis OLIVO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Randi J. Roberts of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen and Jodi L. Mandel, of counsel, Herbert J. Moses and Christopher Tate, on the brief), for respondent.
Before BALLETTA, J.P., and EIBER, O'BRIEN and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldenberg, J.), rendered November 15, 1990, 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 sentencing him to concurrent indeterminate terms of 12 1/2 to 25 years imprisonment for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and 3 1/2 to 7 years imprisonment for criminal possession of a controlled substance in the fifth degree. The appeal brings up for review the denial, after a hearing (Egitto, J.), of that branch of the defendant's omnibus motion which was to suppress evidence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence to concurrent indeterminate terms of 8 1/2 to 17 years imprisonment for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree; as so modified, the judgment is affirmed.
While on patrol as a member of the street narcotics enforcement unit, the arresting officer observed the defendant pass an object to another male after receiving money from him. The officer approached the men and announced that he was a police officer. As he grabbed the defendant's companion and saw a vial in his hand, the arresting officer also noticed the defendant drop three vials containing "a white rock-like substance", later determined to be crack cocaine, near his feet. An additional 26 vials containing crack cocaine were recovered from the defendant when he was searched after being arrested. The defendant moved to suppress the vials, arguing that the arresting officer could not have recognized the substance in the vials as crack cocaine, and therefore, lacked probable cause...
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