Opinion
No. 2111–2010.
2012-11-28
The PEOPLE of the State of New York v. Hector GONZALES, Defendant.
William Woods, Esq., Legal Aid Society, for the Defendant. David Slott, Assistant District Attorney, Office of the Bronx District Attorney.
William Woods, Esq., Legal Aid Society, for the Defendant. David Slott, Assistant District Attorney, Office of the Bronx District Attorney.
RICHARD L. PRICE, J.
Defendant is charged with criminal sale of a controlled substance in the third degree (PL 220.39[1] ), criminal possession of a controlled substance in the third degree (PL 220.16[1] ), and other related charges. He moves to suppress the undercover officer's identification of him on the grounds that it was not supported by the requisite probable cause in violation of N.Y. Const, art I, § 12, and U.S. Const, 4th Amendment. For the reasons stated below, defendant's motion is denied.
By decision and order dated December 17, 2011, Justice Ralph Fabrizio ordered that a Gethers hearing be conducted. On November 27, 2012, this matter was administratively transferred from Part H75, Justice Leonard Livote to this court. A hearing on this issue commenced and concluded before this court on that date. The People called one witness: Sergeant John Urena (“Sgt.Urena”) of the New York City Police Department (“NYPD”), assigned to the Bronx Narcotics Division. The defendant did not call any witnesses. This court finds the testimony of Sgt. Urena credible to the extent indicated herein. Also on November 27, 2012, this court heard oral argument from both the defendant and the People. Upon considering the arguments made, and after reviewing the record, prior court proceedings and documents on file with the court, defendant's motion to suppress the identification proceeding is denied.
Findings of Fact
Sgt. Urena, a 19–year veteran of the NYPD, the past eight as a sergeant with Bronx Narcotics Division, testified that February 23, 2010, he was the supervising officer of the midnight narcotics team (H: 4–5). At that time, Sgt. Urena and his team held a tactical meeting with members of the field team, investigators and undercovers to discuss that evening's enforcement areas. During the meeting, officers reviewed the clothing they would be wearing and the distress signals undercovers were to use, if necessary. They also distributed radios, Kel devices and money. That evening, Detective Manuel Sanchez (“Det.Sanchez”) was the assigned arresting officer. Two undercover officers disguised as civilians were also assigned. The duty of the primary undercover was to attempt to buy narcotics, and the second to serve as a ghost whose function was to observe. The primary undercover officer was equipped with a Kel radio that allowed him to transmit information to the field team through a Kel receiver (H: 6–8).
Sgt. Urena also testified to having received training from the Organized Crime Control Bureau “CB”, in identifying narcotics, conducting undercover operations, and using undercover equipment such as Kel devices and radios.
At approximately 12:25 AM on February 23, 2010, in the vicinity of Wales Avenue and East 152nd Street in Bronx County, Sgt. Urena observed the primary undercover engaged in a conversation with the defendant from approximately a half-block away. Upon observing the undercover walk away, Sgt. Urena received a radio transmission on the Kel receiver of a “sitive buy”, and described the person as a “male Hispanic with [a] black jacket and ... a scar on his nose (H: 13). Sgt. Urena testified that he worked with the undercover officer for approximately one year and recognized the voice to be that of the primary undercover (H: 9–11).
Seconds later, Sgt. Urena and Det. Sanchez exited their vehicle and approached the defendant, who was with two other unapprehended individuals. The defendant then crossed the street while the two other individuals proceeded inside a building. No other civilians were at that location, and no one else fit that description. Within approximately one minute, then, the defendant had been detained. Approximately five minutes later, the undercover officer conducted a “drive-by” during which the undercover, from a distance of 15–20 feet, positively identified the defendant as the person from whom drugs were purchased (H: 12–13).
Conclusions of Law
CPL 140.10(1)(b) provides, “[s]ubject to the provisions of subsection two, a police officer may arrest a person for: A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.” Probable cause, or reasonable cause, does not require proof “sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed ... The legal conclusion is to be made after considering all of the facts and circumstances together” (People v. Bigelow, 66 N.Y.2d 417, 423 [1985], quoting People v. McRay, 51 N.Y.2d 594, 602;see also People v. Maldonado, 86 N.Y.2d 631, 635 [1995] ). The prosecution must, therefore, demonstrate that the police acted with probable cause when they arrested the defendant ( People v. Bouton, 28 N.Y.2d 130 [1980]; People v. Berrios, 28 N.Y.2d 361 [1974] ).
The arresting officer was not present during the drug transaction. Accordingly, implicit in the People's argument is that, although the arresting officer did not have personal knowledge of the narcotics sale, the undercover officer's first-hand experience may be imputed to him under the “fellow officer” rule. “The fellow officer' rule provides that even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest' “ People v. Mims, 88 N.Y.2d 99, 113 [1996], quoting People v. Horowitz, 21 N.Y.2d 55, 60 [1967];see also People v. Ketchum, 93 N.Y.2d 416 [1999] ). Further, “[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and assume its reliability” (People v. Lypka, 36 N.Y.2d 210, 213 [1975];see also People v. Acevedo, 179 A.D.2d 465 [1st Dept 1992], lv denied79 N.Y.2d 996 [1992] ).
The People are correct. Based on these transmissions, Det. Sanchez had probable cause to arrest the defendant. Sgt. Urena and Det. Sanchez received a radio communication from the undercover that a positive buy was made only minutes earlier, along with the location of the sale, and a detailed description of the individual involved. They approached the defendant, who was located near the sale location, and no other individuals matched the description given by the undercover. And, the undercover positively identified defendant.
Defendant claims that the undercover's description of him was too general and could have matched many others in the area at that time. Indeed, an arrest may be rendered unlawful by the inadequacy of the description transmitted to the arresting officer (People v. Jones, 95 N.Y.2d 721 [2001] ). But here, in addition to the defendant fitting the description given by the undercover, Sgt. Urena testified that there were no other individuals on the street at the time of the sale, let alone anyone matching that description.
Moreover, Sgt. Urena and Det. Sanchez possessed reasonable suspicion to stop approach and stop the defendant. Reasonable suspicion is “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” (People v. Martinez, 80 N.Y.2d 444, 448 [1992], quoting People v. Cantor, 36 N.Y.2d 106, 112–113 [1975] ). Det. Sanchez had reasonable suspicion because the defendant matched the description communicated by the undercover as the person with whom the undercover had engaged in a drug transaction, and was located in the area of the drug transaction ( see People v. Robinson, 231 A.D.2d 429 [1st Dept 1996] ). He was further justified in temporarily detaining the defendant for a confirmatory identification by the undercover ( see People v. Hicks, 68 N.Y.2d 234 [1986] ). After the undercover positively identified the defendant as the participants in the drug transaction, Det. Sanchez had probable cause to arrest him ( see People v. Rodriguez, 271 A.D.2d 350 [1st Dept 2000] ), lv denied95 N.Y.2d 857 [2000];People v. DeLaCruz, 223 A.D.2d 472 [1st Dept 1996), lv denied88 N.Y.2d 846 [1996] ).
Conclusion
Probable cause to arrest the defendant existed based on the undercover's description of the defendant, the voice of whom Sgt. Urena recognized based on having worked together for approximately one year ( see e.g., People v. Acevedo, 179 A.D.2d at 465–466;People v. Ortiz, 291 A.D.2d 273 [1st Dept 2002], lv denied98 N.Y.2d 679 [2002];People v. Fernando, 184 A.D.2d 413 [1st Dept 1992]; People v. Thompson, 298 A.D.2d 869 [4th Dept 2002], lv denied99 N.Y.2d 565 [2002] ). Because the arrest was proper, there is no basis for suppressing the identification of the defendant as the product of an illegal arrest (People v. Gethers, 86 N.Y.2d 159 [1995] ). Defendant's motion is therefore denied in all respects.
This constitutes the decision and order of the court.