People v. Sudler

• Decision Date: 22 July 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Ijal SUDLER, Appellant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 373

75 A.D.3d 901

The PEOPLE of the State of New York, Respondent,

v.Ijal SUDLER, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 22, 2010.

Craig S. Leeds, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, STEIN, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered February 15, 2008, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance inthe third degree (three counts), criminal possession of a controlled substance in the fourth degree and criminally using drug paraphernalia in the second degree.

In November 2006, after receiving tips from two informants that defendant was in the area with drugs, the City of Albany Police Department carried out surveillance of defendant's vehicle and an apartment in the City of Albany out of which he was believed to be working. Police also conducted a " rip operation" in which they listened while an informant used a cellular telephone to arrange a crack cocaine purchase from defendant.Police stopped the vehicle while the drugs were allegedly being delivered and arrested the driver and sole occupant, Boshaun Gregory, who was found with narcotics on his person. Defendant was arrested when he arrived at the scene. Narcotics and drug paraphernalia were found in the apartment during a search conducted pursuant to a warrant.

Defendant was indicted on three counts of criminal possession of a controlled substance in the third degree and one count each of criminal possession of a controlled substance in the fourth degree, criminal possession of marihuana, and criminally using drug paraphernalia in the second degree. After his motion to suppress physical evidence was denied, defendant fled. He was tried in absentia by a jury and, at the close of all proof, the People withdrew the charge of criminal possession of marihuana. Defendant was convicted on the remaining counts. He appeared for sentencing and was sentenced as a predicate violent felony offender to an aggregate prison sentence of 30 years, to be followed by three years of postrelease supervision. Defendant appeals.

County Court properly denied defendant's motion to suppress physical evidence. His arrest did not lack probable cause, which " '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 A.D.3d 858, 859, 773 N.Y.S.2d 491 [2004], quoting People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028 [1995] [internal quotation marks and citation omitted] ). Probable cause for an arrest may be based, in whole or in part, on hearsay information satisfying the two-part Aguilar-Spinelli test, which requires "a showing that the informant is reliable and has a basis of knowledge for the information imparted" ( People v. Bell, 5 A.D.3d at 859, 773 N.Y.S.2d 491; see People v. Johnson, 66 N.Y.2d 398, 402, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] ). An arresting officer may rely on information obtained from a fellow officer so long as "the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest" ( People v. Ramirez-Portoreal, 88 N.Y.2d 99, 113, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] [internal quotation marks and citation omitted]; see People v. Bell, 5 A.D.3d at 859, 773 N.Y.S.2d 491).

At the suppression hearing, Detective Ricky Vincent testified that he was told that defendant was in the Albany area with drugs by an anonymous informant who had previously provided a fellow officer with information about defendant's alleged drug dealings, including his street name ("G"), his cellular telephone number, and the make, model and license plate number of his vehicle. Later that same day, another informant (hereinafter the second informant) told Vincent that "G" was providing herwith drugs, was working out of a certain Albany apartment, and sometimes used a person named Gregory to make deals. The second informant also provided Vincent with vehicle and telephone information for defendant correspondingwith the information previously provided by the anonymous informant.

Vincent testified that he sent several detectives to monitor the Albany apartment, where a vehicle matching the informants' description was spotted. Police simultaneously mounted the rip operation, in the course of which Vincent listened as the second informant called defendant's purported cellular telephone number and arranged to have Gregory deliver crack cocaine to her home after completing an errand. After this call was placed, officers watched defendant's vehicle being driven away from the apartment. Gregory emerged briefly to carry out an errand and then drove the vehicle onto the second informant's street, where police officers pulled it over and arrested him, recovering drugs and drug paraphernalia from his person. At the instruction of police, Gregory and the second informant each telephoned defendant, and Vincent overheard defendant state that he was waiting for a taxi to bring him to the vehicle. Meanwhile, officers watching the apartment building saw defendant outside, speaking on the telephone and entering a taxi. He arrived at the arrest scene in the same taxi, identified himself, and was arrested.

These events were sufficient to establish probable cause for defendant's arrest. The second informant's basis of knowledge was established by her prior dealings with defendant and by her personal involvement in the rip operation ( see People v. Walker, 27 A.D.3d 899, 900, 810 N.Y.S.2d 592 [2006], lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261 [2006] ). The reliability of the information provided was established by its correspondence with the information previously obtained from the other informant and also by the direct observations of the police officers engaged in the surveillance and rip operation ( see People v. DiFalco, 80 N.Y.2d 693, 696-697, 594 N.Y.S.2d 679, 610 N.E.2d 352 [1993]; People v. Smalls, 271 A.D.2d 754, 754-755, 707 N.Y.S.2d 245 [2000], lv. denied 95 N.Y.2d 804, 711 N.Y.S.2d 172, 733 N.E.2d 244 [2000] ). Finally, the arresting officer had probable cause for defendant's warrantless arrest consisting of the information provided to him by radio from the other officers who were participating in the surveillance and rip operation ( see People v. Bell, 5 A.D.3d at 859, 773 N.Y.S.2d 491).

County Court properly determined that defendant did not show a legitimate expectation of privacy in the Albany apartment and therefore lacked standing to contest the application for a search warrant ( see People v. Rodriguez, 69 N.Y.2d 159, 162, 513 N.Y.S.2d 75, 505 N.E.2d 586 [1987]; People v. Howard, 213 A.D.2d 903, 904, 624 N.Y.S.2d 300 [1995], lv. denied85 N.Y.2d 974, 629 N.Y.S.2d 734, 653 N.E.2d 630 [1995] ). When defendant was arrested, he told police that he resided in Brooklyn, at the same street address where his vehicle was registered. The lessee of the Albany apartment told police that defendant had a key, stayed there from time to time, and kept clothing there, but keys that police took from defendant did not unlock the apartment door. Thus, defendant did not meet his burden to establish that he had taken precautions to maintain the Albany apartment's privacy, that he had the right to exclude others from the premises, or otherwise had a reasonable expectation of privacy there ( see People v. Rodriguez, 69 N.Y.2d at 162-163, 513 N.Y.S.2d 75, 505 N.E.2d 586). In any event, the search warrant application was supported by probable cause ( see People v. Mabeus, 63 A.D.3d 1447, 1450, 885 N.Y.S.2d 363 [2009] ). Finally, in light of the officers' direct observations and the information obtained via the phone conversations with defendant, no Darden hearingwas required ( see People v. Farrow, 98 N.Y.2d 629, 630-631, 745 N.Y.S.2d 752, 772 N.E.2d 1110 [2002] ).

Defendant's claim that the witness testimony was incredible as a matter of law, thereby rendering the evidence legally insufficient to support his convictions, is unpreserved for appellate review. His general motion for a trial order of dismissal at the close of proof ( see CPL 290.10) was ineffective to preserve this claim because it was not "specifically directed at the alleged error" ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] [internal quotation marks omitted] ). Moreover, defendant's posttrial motion to set aside the verdict on the insufficiency ground was properly denied. Such a motion may be granted only for issues of law that "would require a reversal or modification of the judgment as a matter of law by an appellate court" (CPL 330.30[1] ), and "[u]nder this statutory standard, an insufficiency argument may not be addressed unless it has been properly preserved for review during the trial" ( People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001]; see People v. Thomas, 38 A.D.3d 1134, 1136, 832 N.Y.S.2d 688 [2007], lv. denied 9 N.Y.3d 852, 840 N.Y.S.2d 778, 872 N.E.2d 891 [2007] ).

Next, defendant asserts that his motion pursuant to CPL 330.30 should have been granted on the ground that testimony regarding uncharged crimes was improperly admitted. In this regard, Vincent testified at trial that he began investigating defendant after arresting the second informant and learning that she had purchased crack cocaine from him. Defendant contends that his motion for a mistrial based on this testimony should have been granted since this uncharged crime was not part of the People's pretrial Molineaux application. We agree with County Court that the testimony was "inextricably interwoven with the charged crimes"( People v. Tarver, 2 A.D.3d 968, 969, 768 N.Y.S.2d 391 [2003] ). The evidence in question...