People v Poole

People v Poole 2007 NY Slip Op 09514 [45 AD3d 501] November 29, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent,
v
Gary Poole, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York City (Natalie Rea of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered January 20, 2006, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of six years, unanimously affirmed.

The court properly denied defendant's suppression motion. Probable cause was established, circumstantially (see People v Gonzalez, 91 NY2d 909, 910 [1998]; People v Mims, 88 NY2d 99, 113-114 [1996]), by testimony that an undercover officer broadcast a specific description and location of two men who had just sold him drugs, and that, immediately thereafter, the testifying officer saw defendant, who matched one of the descriptions, at the specified location in the custody of nontestifying members of the same police field team. "[T]he only rational explanation of how defendant came to be arrested" (People v Johnson, 281 AD2d 183 [2001], lv denied 96 NY2d 903 [2001]) is that members of the field team heard the radio communication and apprehended defendant on that basis.

Defendant's other argument is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find no basis for reversal. Concur—Tom, J.P., Saxe, Friedman, Williams and Buckley, JJ.