Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Andre AMOS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[12] ). We reject defendant's contention that Supreme Court erred in refusing to suppress physical evidence and statements made by defendant as the fruits of an allegedly unlawful approach and pursuit of defendant by the police. Two officers testified at the suppression hearing that they were on patrol together when they observed defendant leaning into a parked vehicle. Inasmuch as the vehicle was illegally parked, the officers had an objective, credible reason to approach it (see People v. Valerio, 274 A.D.2d 950, 951, 710 N.Y.S.2d 497, affd. 95 N.Y.2d 924, 721 N.Y.S.2d 601, 744 N.E.2d 136, cert. denied 532 U.S. 981, 121 S.Ct. 1623, 149 L.Ed.2d 485 ; People v. Barrientos, 84 A.D.3d 549, 550, 923 N.Y.S.2d 95, lv. denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 ). Both officers testified that they were trained to identify controlled substances, including cocaine (see People v. Caldwell, 197 A.D.2d 390, 390, 602 N.Y.S.2d 351, lv. denied 82 N.Y.2d 848, 606 N.Y.S.2d 600, 627 N.E.2d 522 ), and that they observed a baggie in defendant's hand that they believed to contain cocaine. They further testified that they observed the cocaine before defendant started to run away. Because the officers had probable cause to seize the cocaine and arrest defendant when they observed the baggie in defendant's possession (see People v. Smith, 134 A.D.3d 1568, 1568, 22 N.Y.S.3d 783 ), defendant's act of discarding the baggie and its contents during the subsequent foot chase was not in response to illegal police conduct (see People v. Flemming, 308 A.D.2d 385, 386, 764 N.Y.S.2d 408, lv. denied 1 N.Y.3d 571, 775 N.Y.S.2d 788, 807 N.E.2d 901 ). Contrary to defendant's contention, moreover, we conclude that “there is no basis in the record to disturb the suppression court's determination to credit the testimony of the police officers” (People v. Hale, 130 A.D.3d 1540, 1541, 14 N.Y.S.3d 603, lv. denied 26 N.Y.3d 1088, 23 N.Y.S.3d 645, 44 N.E.3d 943 ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.