Opinion
16971 Ind. Nos. 2239/17, 2583/18 Case No. 2020–00252
12-22-2022
The PEOPLE of the State of New York, Respondent, v. Durwin MERCER, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Elizabeth M. Vasily of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (David Gagne of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Elizabeth M. Vasily of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (David Gagne of counsel), for respondent.
Webber, J.P., Friedman, Gesmer, Shulman, Rodriguez, JJ.
Judgment, Supreme Court, New York County (Michael J. Obus, J. at consolidation motion; Cassandra M. Mullen, J. at suppression hearing and jury trial), rendered November 7, 2019, as amended January 6, 2020, convicting defendant of criminal sale of a controlled substance in the third degree and criminal contempt in the second degree, and sentencing him to an aggregate term of three years, unanimously affirmed.
The hearing court properly denied defendant's motion to suppress physical evidence, i.e., prerecorded buy money as the fruit of an unlawful arrest. Defendant's arrest and subsequent search of his person emanated from an undercover drug buy and bust operation. Under the fellow officer rule (see People v. Ketcham, 93 N.Y.2d 416, 419, 690 N.Y.S.2d 874, 712 N.E.2d 1238 [1999] ), the arresting officer was entitled to rely on the description of a drug seller provided by a ghost undercover officer. Given the circumstances, either the description was based on the ghost officer's own observations, or it could only have originated from the undercover officer who made the purchase (see id. at 421–422, 690 N.Y.S.2d 874, 712 N.E.2d 1238 ; People v. Dickerson, 20 A.D.3d 359, 360, 799 N.Y.S.2d 50 [1st Dept. 2005], lv denied 5 N.Y.3d 852, 806 N.Y.S.2d 172, 840 N.E.2d 141 [2005] ). This description included a combination of clothing styles and colors, along with a particular hairstyle.
Shortly after the radio transmission, the arresting officer observed defendant, the only person in the vicinity matching the description, walking down the street and counting money. The description was "sufficiently specific to provide probable cause to the arresting officer in light of the close temporal and spatial proximity between the drug sale and defendant's arrest" ( People v. Garcia, 199 A.D.3d 425, 425, 153 N.Y.S.3d 855 [1st Dept. 2021], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 695, 181 N.E.3d 1123 [2022] ). Although the arrest occurred on a busy street, and the radioed description did not state the suspect's location, it is clear from the hearing evidence that defendant was arrested less than a block from the just-completed drug transaction, and it was "highly unlikely that the suspect had departed and that ... an innocent person of identical appearance coincidentally arrived on the scene" ( People v. Johnson, 63 A.D.3d 518, 518, 881 N.Y.S.2d 81 [2009], lv denied 13 N.Y.3d 797, 887 N.Y.S.2d 546, 916 N.E.2d 441 [2009] ). Moreover, defendant tried to flee when the arresting officer identified himself.
The motion court providently exercised its discretion in granting consolidation of two indictments relating to separate drug sales (see CPL 200.20[2][c] ). Defendant has not demonstrated good cause for severance or any substantial likelihood that the jury was unable to consider the charges separately (see CPL 200.20[3] ; People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982] ; People v. Ndeye, 159 A.D.2d 397, 397–98, 553 N.Y.S.2d 97 [1st Dept. 1990], lv denied 76 N.Y.2d 793, 559 N.Y.S.2d 998, 559 N.E.2d 692 [1990] ). Moreover, the court provided suitable limiting instructions, and the jury acquitted defendant of one of the drug sale charges, convicting him only of criminal contempt (arising out of a contemporaneous violation of an order of protection), which "strongly indicates that he was not prejudiced by the joint trial" (see People v. Mathis, 37 A.D.3d 212, 213, 829 N.Y.S.2d 98 [1st Dept. 2007], lv denied 8 N.Y.3d 987, 838 N.Y.S.2d 490, 869 N.E.2d 666 [2007] ). Finally, any error in consolidating the indictments was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).