People v. Santiago
Decision Date | 18 July 1994 |
Citation | 614 N.Y.S.2d 548,206 A.D.2d 492 |
Parties | The PEOPLE, etc., Respondent, v. Ramon SANTIAGO, Appellant. |
Court | New York Supreme Court — Appellate Division |
Stephen J. Pittari, White Plains (Miriam H. Sayegh, of counsel), for appellant.
Jeanine Pirro, Dist. Atty., White Plains (Christopher Michael Shaw and Richard Longworth Hecht, of counsel), for respondent.
Before ROSENBLATT, J.P., and MILLER, RITTER and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Westchester County (Pirro, J.), rendered January 25, 1993, convicting him of criminal possession of a controlled substance in the fifth degree, 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 affirmed.
Contrary to the defendant's contention, the County Court properly denied suppression of the "pouch" that the defendant had dropped in the "lobby" of the boarding house while he was walking away from detectives, and the vials recovered therefrom. The specificity of the information provided by the anonymous tip and the congruity between that information and the circumstances actually encountered provided the detectives with the requisite "reasonable suspicion" for them to approach the defendant to inquire (see, People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204; People v. Benjamin, 51 N.Y.2d 267, 434 N.Y.S.2d 144, 414 N.E.2d 645; People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Bora, 191 A.D.2d 384, 595 N.Y.S.2d 437, aff'd 83 N.Y.2d 531, 611 N.Y.S.2d 796, 634 N.E.2d 168; People v. Batash, 163 A.D.2d 399, 558 N.Y.S.2d 570; see also, People v. Martinez, 80 N.Y.2d 444, 591 N.Y.S.2d 823, 606 N.E.2d 951; People v. Leung, 68 N.Y.2d 734, 506 N.Y.S.2d 320, 497 N.E.2d 687; cf., People v. May, 81 N.Y.2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113). Moreover, the seizure of the pouch containing the vials of cocaine was proper, inasmuch as the defendant's dropping of the pouch amounted to a calculated strategy by the defendant to rid himself of the incriminating evidence, and constituted abandonment thereof (see, People v. Martinez, supra, 80 N.Y.2d at 444, 591 N.Y.S.2d 823, 606 N.E.2d 951; People v. Leung, supra, 68 N.Y.2d at 734, 506 N.Y.S.2d 320, 497 N.E.2d 687; People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329, cert. denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383; see also, People v. Yizar, 196 A.D.2d 517, 600 N.Y.S.2d 749; People v. Merriman, 194 A.D.2d 745, 600 N.Y.S.2d 74; People v. Archibald, 192 A.D.2d 537, 538, 595 N.Y.S.2d 820). Also, once the pouch was recovered and the vials found therein, the officers had the requisite probable cause to arrest the defendant (see, People v. Martinez, supra, 80 N.Y.2d at 444, 591 N.Y.S.2d 823, 606 N.E.2d 951; People v. Leung, supra, 68 N.Y.2d at 734, 506 N.Y.S.2d 320, 497 N.E.2d 687; People v. Bora, supra; People v. Yizar, supra, 196 A.D.2d at 517, 600 N.Y.S.2d 749).
The defendant has not preserved for appellate review his contention that the court's instruction to the jury on reasonable doubt in effect shifted the burden of proof from the prosecution to the defense (see, CPL 470.05[2]; People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430; People v. Gordon, 204 A.D.2d 566, 614 N.Y.S.2d 213) and, in any event, this contention is without merit (see, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95; see also, People v. Malloy, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93; People v. Jones, 27 N.Y.2d 222, 227, 316 N.Y.S.2d 617, 265 N.E.2d 446). Similarly without merit are the defendant's contentions with respect to the court's Allen charge (see, People v. Ford, 78 N.Y.2d 878, 573 N.Y.S.2d 442, 577 N.E.2d 1034; People v. Pagan, 45 N.Y.2d 725, 408 N.Y.S.2d 473, 380 N.E.2d 299; People v. Bastien, 180 A.D.2d 691, 692, 580...
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