Opinion
May 30, 1995
Appeal from the Supreme Court, Queens County (Fisher, J.).
Ordered that the judgments and amended judgment are affirmed.
We agree with the defendant's contention that the record is insufficient to demonstrate that he knowingly, intelligently and voluntarily waived his right to appeal and, accordingly, his purported waiver is unenforceable (see, People v Rendon, 208 A.D.2d 869; People v Pressley, 202 A.D.2d 695; People v Markland, 183 A.D.2d 788; see generally, People v DeSimone, 80 N.Y.2d 273, 282-283).
Contrary to the defendant's assertion, however, the hearing court properly denied suppression under Indictment No. 11221/92. The record demonstrates that the defendant's attempt to discard two paper bags containing cocaine was an "independent act involving a calculated risk", and not a response to unlawful police conduct (see, People v Boodle, 47 N.Y.2d 398, 404, cert denied 444 U.S. 969; People v Eldridge, 178 A.D.2d 609; People v Wade, 137 A.D.2d 638).
There is no merit to the defendant's further claim that his arrest for criminal sale of a controlled substance under Indictment No. 11582/92 was not supported by probable cause. The record demonstrates that the undercover officer who purchased narcotics from the defendant transmitted a detailed description of the suspected seller and the seller's accomplice to the arresting officer, and specifically advised the arresting officer that the "buy" had taken place on the northeast corner of 142nd Street and Rockaway Boulevard in Queens. The arresting officer arrived at the specified location in "a matter of seconds", and immediately apprehended the defendant, who closely matched the description of the suspected seller, and the codefendant, who matched the description of the seller's accomplice. These facts and circumstances, when viewed together, would lead a reasonable person having the same expertise as the arresting officer to conclude that the defendant had perpetrated the sale (see, People v Petralia, 62 N.Y.2d 47, 51-52, cert denied 469 U.S. 852; People v Carter, 198 A.D.2d 229; People v Pacheco, 192 A.D.2d 625).
In light of the foregoing determinations, there is no basis for vacatur of the plea under Indictment No. 12074/90 (cf., People v Clark, 45 N.Y.2d 432). Bracken, J.P., Ritter, Joy and Goldstein, JJ., concur.