Opinion
2014-07-9
The PEOPLE, etc., respondent, v. Christopher MASON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered December 12, 2011, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Chun, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in denying that branch of his omnibus motion which was to suppress physical evidence is without merit. The defendant was arrested at the same location where an undercover officer observed him making a drug sale, minutes after the undercover officer transmitted the defendant's description by radio to the arresting officers. In light of the spatial and temporal proximity between the undercover officer's observations and the defendant's subsequent arrest, and the fact that the defendant's attire and that of his companion matched the given description, the court properly concluded that the officerhad probable cause to arrest the defendant ( see People v. Watson, 187 A.D.2d 743, 744, 591 N.Y.S.2d 177;People v. Toodles, 184 A.D.2d 674, 675, 584 N.Y.S.2d 878;People v. Williams, 170 A.D.2d 629, 566 N.Y.S.2d 402;People v. Zarzuela, 141 A.D.2d 788, 529 N.Y.S.2d 864;see also People v. Rumble, 60 A.D.3d 791, 874 N.Y.S.2d 260).
The defendant failed to meet his “high burden” ( People v. Hobot, 84 N.Y.2d 1021,1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102) of “ ‘demonstrat[ing] the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct” in failing to request a missing witness charge with respect to a certain police officer ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;see People v. Parilla, 158 A.D.2d 556, 557, 551 N.Y.S.2d 326;see also People v. Manzi, 113 A.D.3d 481, 978 N.Y.S.2d 202). While a “single error may qualify as ineffective assistance ... when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial” ( People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213), any error here did not rise to this level ( see Matter of Lasun S., 76 A.D.3d 1079, 908 N.Y.S.2d 434).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contention is without merit ( see People v. Sostre, 70 A.D.2d 40, 45, 418 N.Y.S.2d 662,affd.51 N.Y.2d 958, 435 N.Y.S.2d 702, 416 N.E.2d 1038). BALKIN, J.P., CHAMBERS, COHEN and DUFFY, JJ., concur.