Opinion
October 16, 2001.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered March 9, 1999, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and escape in the first degree, and sentencing him to consecutive terms of 1½ to 4 years and 1 to 3 years, respectively, and judgment, same court (Micki Scherer, J.), rendered May 19, 1999, convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him to a concurrent term of 1 to 3 years, unanimously affirmed.
David J. Mudd, for respondent.
Nancy E. Little, for defendant-appellant.
Before: Tom, J.P., Mazzarelli, Wallach, Buckley, Friedman, JJ.
Defendant's suppression motion was properly denied. There is no basis upon which to disturb the court's credibility determinations, which are supported by the record (see, People v. Prochilo, 41 N.Y.2d 759, 761). Testimony properly credited by the court, including the officer's observation of crack vials, established probable cause. In any event, the record also supports the court's finding that defendant abandoned the bag in question. Regardless of whether defendant dropped the bag intentionally or otherwise, he evinced an intention to abandon the bag by walking away from it when it fell from him (see, People v. Ramirez-Portoreal, 88 N.Y.2d 99, 110-111; People v. Sanchez, 260 A.D.2d 298, lv denied 93 N.Y.2d 1026).
The verdict convicting defendant of escape in the first degree was based on legally sufficient evidence and was not against the weight of the evidence. Based on the evidence presented, the jury could rationally conclude that defendant was out of the control of the officers for a short period of time and was thus guilty of escape (see, People v. Sargent, 194 A.D.2d 865; People v. Mesa, 188 A.D.2d 688, lv denied 81 N.Y.2d 844).
Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal (see, People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.