Opinion
May 28, 1985
Appeal from the Supreme Court, Queens County (Weiss, J.).
Upon reargument, the order and decision of this court, both dated May 31, 1983, are recalled and vacated and the judgment rendered December 7, 1979 is affirmed.
The case involves a "buy and bust" operation. At the suppression hearing, the backup officers testified that they saw some hand motions, and it appeared that defendant was conversing with the undercover officer. They could not see the actual drug transaction, however. Upon receiving a radio communication from the undercover officer that a sale had taken place, they proceeded to take a codefendant into custody. The undercover officer had already arrested defendant.
Upon these facts, the hearing court found that there was probable cause to arrest, and evidence seized at the time of the arrest did not have to be suppressed. Although this court initially determined that the undercover officer's testimony was required at the suppression hearing in light of the decision of the Court of Appeals in People v. Petralia ( 62 N.Y.2d 47), we are constrained to conclude that his presence was not necessary. The testimony of the backup team contained sufficient evidence to support a finding of probable cause; therefore, the items seized need not be suppressed.
Although the prosecutor was somewhat overzealous, and his questioning of defendant on occasion was improper, these errors are harmless in view of the overwhelming proof of guilt ( People v. Ormond, 73 A.D.2d 629). Defendant's own testimony established the necessary elements of the crimes, and did not suffice to support any cognizable defense. Because there was no significant probability that the jury would have acquitted him had the remarks not been made ( People v. Diaz, 73 A.D.2d 604), reversal is not mandated. Bracken, J.P., O'Connor, Weinstein and Brown, JJ., concur.