People v. Parker

• Decision Date: 12 May 2011
• Docket Number: 103302
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL PARKER, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 03924

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.MICHAEL PARKER, Appellant.

103302

Appellate Division of the Supreme Court of the State of New York

Decided and Entered: May 12, 2011

Calendar Date: March 25, 2011

Before: Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Garry, JJ.

Ralph Cherchian, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

MEMORANDUM AND ORDER

Garry, J.

Appeal from a judgment of the Supreme Court(R. Sise, J.), rendered April 1, 2010 in Schenectady County, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the third degree.

Defendant was arrested in June 2009 as the result of a buy/bust operation in the Town of Rotterdam, Schenectady County in which undercover police officers arranged to buy cocaine from codefendant Daniella Gay, who had been identified by a confidential informant as a person seeking to sell narcotics.Two officers met Gay in a shopping plaza parking lot, while others listened to the transaction through a radio device.When the undercover officers expressed interest in buying cocaine, Gay directed them to drive her across the parking lot so she could "meet her man."Upon seeing defendant, she greeted him by name, and defendant asked Gay whether she was "doing her business."Gay responded that she was working on it, removed a small package from her clothing and asked defendant how much it weighed.Defendant responded, "seven."The officers paid Gay $500 for the package, which proved to contain cocaine, and defendant and Gay were arrested.A search of defendant's person disclosed a substantial amount of cash and a plastic bag filled with cocaine.

Defendant was indicted on three counts based upon criminal possession and sale of acontrolled substance.County Court(Berke, J.H.O.) conducted a Mapp hearing and found that the police had reasonable cause for defendant's arrest.Following a jury trial, defendant was convicted of one count of criminal possession of a controlled substance in the third degree.Defendant moved pursuant to CPL 330.30 (1) to set aside the verdict, contending that probable cause for his arrest was lacking and that the evidence was legally insufficient to establish the weight of the substance found on his person.Supreme Court denied the motion and sentenced defendant to a prison term of three years followed by two years of postrelease supervision.Defendant appeals.

Initially, defendant contends that probable cause for his arrest was lacking because he did not directly participate in the exchange of drugs and cash between Gay and the police.We disagree."Probable cause exists when an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed"(People v Bell, 5 AD3d 858, 859[2004][internal quotation marks and citations omitted]).Such facts and circumstances must make it "more probable than not that a crime has taken place and that the one arrested is its perpetrator"(People v Brown, 151 AD2d 199, 203[1989], lv denied75 NY2d 768[1989][internal quotation marks and citation omitted]).An undercover investigator who was in the car with Gay testified that, in his experience, drug dealers often distance themselves from drug transactions by using others to conduct sales on their behalf.He also stated that he believed Gay was acting on defendant's behalf because, unlike drug dealers in the investigator's experience, she did not know the weight of the substance she was carrying and had to consult defendant before she could sell it.The investigator further testified that he understood defendant's use of the word "seven" to mean that the package weighed seven grams — a weight with a street price consistent with the amount the officers paid.The investigator was entitled to draw on his experience and knowledge in concluding that the interaction between Gay and defendant provided reasonable cause for defendant's arrest (seePeople v Brown, 151 AD2d at 203;People v Hill, 146 AD2d 823, 824[1989], lv denied73 NY2d 1016[1989]).Further, the fellow officer rule entitled the arresting officers, who had not directly observed the transaction, to act on information received from the other officers to establish probable cause for the arrest (seePeople v Ramirez-Portoreal, 88 NY2d 99, 113-114[1996];People v Dowling, 75 AD3d 838, 840[2010], lv denied15 NY3d 952[2010]).

Defendant next contends that the evidence was legally insufficient to support his conviction in that the People failed to prove that the cocaine found on his person weighed one half of an ounce or more (seePenal Law § 220.16 [12];People v Paige, 77 AD3d 1193, 1196[2010], affd16 NY3d 816[2011]).Relying upon cases addressing the reliability of breathalyzer machines, defendant asserts that calibration records should have been introduced to establish the accuracy of the scale used to weigh the cocaine (see e.g.People v Freeland, 68 NY2d 699, 701[1986];People v English, 103 AD2d 979, 980[1984]).

We find no reason to impose that requirement in this matter.The forensic scientist who weighed the substance testified that the balances she used for this purpose were tested for accuracy every week by a verification process using standardized weights, and were calibrated every six months by a service representative.She further testified that there are 28.35 grams in an ounce and approximately 14¼ grams in half an ounce, that the substance she tested...