People v Christian

[*1] People v Christian 2005 NY Slip Op 51496(U) [9 Misc 3d 1111(A)] Decided on September 20, 2005 Supreme Court, Bronx County Benitez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 20, 2005
Supreme Court, Bronx County

The People of the State of New York

against

Jason Christian, Defendant.



3815/2004

Peter J. Benitez, J.

After hearing testimony and argument on defendant's motion to suppress physical evidence and identification testimony this court orally set forth its findings of fact and conclusions of law and denied defendant's motions. Now defendant moves to reargue the motion, in essence taking issue with this court's application of decisional law to the facts of this case. The People oppose defendant's motion and urge this court to adhere to its original decision.

While defendant's motion could be summarily denied as it asks the court to reconsider its original decision based on the facts adduced at the hearing and based on a recent decision of another judge of this court in a factually different case, this court will entertain the motion. After considering defendant's arguments and the People's response, this court adheres to its original findings of fact and conclusions of law and denies the motions to suppress.

People v. Mims, 88 NY2d 99 (1996), clearly held that there were some circumstances under which a hearing court could infer the nature and content of a communication between officers and infer the basis of a non-testifying officer's actions even in the absence of direct evidence of the communication or direct evidence of the basis for the non-testifying officer's actions. In Mims, the Court held that the hearing court could infer that the non-testifying observing officer told the apprehending officer what he had seen and that the information provided probable cause to seize that defendant. Of particular note was the fact that the two officers were working together in a drug interdiction assignment.

Those principles were again applied in People v. Gonzalez, 91 NY2d 909 (1998), where the Court held that the hearing court could infer that officers who initially detained the defendant were acting on the radioed transmissions of fellow officers without testimony from the officers who initially detained that defendant. Again, of note was the fact that the officers were working together in a coordinated drug interdiction assignment, a "buy and bust" team. See also, People v. Tanner, 10 AD3d 561 (1st Dept. 2004); People v. Cole, 290 AD2d 398 (1st Dept. 2002); People v. Rodriguez, 271 AD2d 350 (1st Dept. 2000), all of which upheld the drawing of inferences as to the basis for police officers' actions during the course of an apprehension in a coordinated drug interdiction assignment. [*2]

In People v. Bruce, 306 AD2d 68 (1st Dept. 2003), the Court upheld the hearing court's drawing of inferences about the basis for the pursuit of the defendant without the pursuing officers and civilians testifying. In People v. Ketcham, 93 NY2d 416 (1999) and People v. Dickerson, 20 AD3d 359 (1st Dept. 2005), the Courts upheld the hearing courts' inferring that the basis for certain police communications were the direct observations of non-testifying officers.

In the instant case the testifying officer was assigned to the vehicle with the supervisor of the buy and bust field operation in a coordinated drug interdiction assignment. He heard the radioed communications from the undercover officer in the field who stated that a "positive buy" had been made and gave a description of the seller. That description was then given out to the members of the field team who were assigned to locate and apprehend that described subject. The "ghost" officer's transmissions led the testifying officer and supervisor to the location where they saw members of their field team pursuing a person who matched the description of the seller given by the undercover officer. Clearly, the only logical inference is that the pursuing officers heard the description of the seller, saw the defendant who matched that description near the location of the sale, and that the defendant fled when the officers approached him. The testifying officer properly drew these same inferences and apprehended defendant, and this court could also draw those inferences without hearing from the officers who initially approached defendant and pursued him.

In view of defendant's flight from the approaching officers, the apprehending officer's actions were supported by probable cause to believe that defendant had made the sale to the undercover officer.

In view of the fact that appellate decisional law supports this court's inferential findings of fact and its conclusions of law, this court need not consider a decision by another hearing court which did not discuss whether the facts of that case would have permitted the drawing of inferences as to the reason for that defendant's initial custody. See People v. Lanier, NYLJ, 8/4/05, p. 17, col. 2.

Wherefore, defendant's motions to suppress are denied.

This opinion constitutes the decision and order of the court.

Dated: September 20, 2005

Bronx, New YorkPETER J. BENITEZ, J.S.C.