Opinion
January 11, 1993
Appeal from the Supreme Court, Kings County (Goldenberg, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence to concurrent indeterminate terms of 8 1/2 to 17 years imprisonment for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree; as so modified, the judgment is affirmed.
While on patrol as a member of the street narcotics enforcement unit, the arresting officer observed the defendant pass an object to another male after receiving money from him. The officer approached the men and announced that he was a police officer. As he grabbed the defendant's companion and saw a vial in his hand, the arresting officer also noticed the defendant drop three vials containing "a white rock-like substance", later determined to be crack cocaine, near his feet. An additional 26 vials containing crack cocaine were recovered from the defendant when he was searched after being arrested. The defendant moved to suppress the vials, arguing that the arresting officer could not have recognized the substance in the vials as crack cocaine, and therefore, lacked probable cause to arrest him.
On appeal, the defendant challenges the determination of the hearing court, now claiming that the arresting officer's testimony was incredible and not worthy of belief. The defendant's claim is without merit. The hearing court's determinations as to credibility are afforded great weight on appeal and should not be disturbed unless clearly unsupported by the evidence (see, People v. Prochilo, 41 N.Y.2d 759; People v Boone, 183 A.D.2d 721). Here, we find no basis to disturb the hearing court's determination to credit the arresting officer's testimony at the suppression hearing. Further, the hearing court also properly determined that the arresting officer's observations gave rise to his common-law right of inquiry (see, People v. De Bour, 40 N.Y.2d 210). Once he saw the defendant drop the three vials, the arresting officer had probable cause to arrest him (see, People v. Goggans, 155 A.D.2d 689, 690).
The defendant's sentence was excessive to the extent indicated. Balletta, J.P., Eiber, O'Brien and Santucci, JJ., concur.