Opinion
November 13, 1990
Appeal from the Supreme Court, New York County, Jay Gold, J.
The trial court properly denied the motion seeking suppression of physical evidence. Defendants' arrest was supported by probable cause. The informant's knowledge was based on personal observation. (Cf., People v. Elwell, 50 N.Y.2d 231, 234-235.) The arresting officers may not have observed defendants take any action that, standing alone, was indicative of criminal activity, but the detectives' testimony at the hearing contains no suggestion that the informant had said the defendants were merely present in the apartment where the cocaine was packaged. (People v. Martin, 32 N.Y.2d 123.)
Wanton's memorandum containing the notes of a drug transaction was properly introduced into evidence. Together with his phone book, the memorandum served to connect Wanton to Jean-Jacques, the codefendant with whom the police had been negotiating. It also served to negate Wanton's twin claims that he did not share Jean-Jacques' intent and that his presence on the scene when the drugs were supposed to have been transferred was coincidental. (People v. Jackson, 39 N.Y.2d 64.)
Defendants have not established that they are entitled to a new trial because of the prosecutor's summation. While the prosecutor should not have referred to Grand Jury testimony which had not been introduced into evidence at trial, any prejudice was obviated by the trial court's prompt curative instruction. (People v. Galloway, 54 N.Y.2d 396, 398-399.)
Defendants also fail to show that this is one of the rare cases in which application of the statutory sentencing scheme constitutes cruel and unusual punishment. (Cf., People v. Broadie, 37 N.Y.2d 100, cert. denied 423 U.S. 950.)
Concur — Kupferman, J.P., Milonas, Rosenberger, Asch and Kassal, JJ.