Opinion
14172 Ind. No. 2525/16 Case No. 2019–4542
08-19-2021
The PEOPLE of the State of New York, Respondent, v. Wayne MARTIN, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (David Crow of counsel) and Winston & Strawn LLP, New York (Michael A. Fernández of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jonathan Cantarero of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (David Crow of counsel) and Winston & Strawn LLP, New York (Michael A. Fernández of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jonathan Cantarero of counsel), for respondent.
Acosta, P.J., Kapnick, Moulton, Scarpulla, JJ.
Judgment, Supreme Court, New York County (Jill Konviser, J. at suppression hearing; Michael J. Obus, J. at jury trial and sentencing), rendered April 9, 2018, convicting defendant of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and unlawful possession of marijuana, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to an aggregate term of six years, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50(5).
The court properly denied defendant's suppression motion. Based on the totality of the relevant factors (see People v. Jones, 90 N.Y.2d 835, 837, 660 N.Y.S.2d 549, 683 N.E.2d 14 [1997] ), the hearing evidence supported the court's finding that there was probable cause for defendant's arrest. In an area with a high incidence of drug trafficking, a trained and experienced narcotics officer saw defendant crush an unidentified object in a manner the officer had seen in other narcotics transactions, hand it to another man, and receive money in exchange (see e. g. People v. Osman, 125 A.D.3d 495, 2 N.Y.S.3d 122 [1st Dept. 2015], lv denied 25 N.Y.3d 1075, 12 N.Y.S.3d 627, 34 N.E.3d 378 [2015] ). "Street sellers of narcotics should not enjoy an immunity from arrest or search merely because they are able to conceal their wares during the exchange; concealment is itself a common characteristic of illegal conduct" ( People v. Graham, 211 A.D.2d 55, 59, 626 N.Y.S.2d 95 [1st Dept. 1995], lv denied 86 N.Y.2d 795, 632 N.Y.S.2d 508, 656 N.E.2d 607 [1995] ).
Defendant did not preserve his claims of trial error, and we decline to review them in the interest of justice. As an alternative holding, we find that nothing in the prosecutor's summation warrants reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992] ; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ). We also find that an innocuous remark to the jury by the court while taking a partial verdict of guilty on the marijuana count, essentially recognizing that defendant's guilt of that violation had been uncontested at trial (see People v. Wright, 270 A.D.2d 176, 705 N.Y.S.2d 223 [1st Dept. 2000], lv denied 94 N.Y.2d 954, 710 N.Y.S.2d 11, 731 N.E.2d 628 [2000] ), could not have caused any prejudice with regard to the other charges.