Opinion
1114
May 13, 2003.
Judgment, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered May 23, 2001, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.
Kristin L. Vassallo, for respondent.
Richard Joselson, for defendant-appellant.
Before: Nardelli, J.P., Tom, Rosenberger, Ellerin, Gonzalez, JJ.
Defendant's suppression motion was properly denied. In this unusual "buy and bust" case in which the undercover officers seized defendant themselves and held him for the arresting officer, the People met their burden of establishing probable cause for the arrest through the testimony of the arresting officer alone. The chain of events, viewed as a whole, clearly warranted the conclusion that there was a drug transaction and that defendant was the seller (see People v. Amoateng, 141 A.D.2d 398, lv denied 73 N.Y.2d 852; see also People v. Ketcham, 93 N.Y.2d 416).
The court properly found defense counsel's peremptory challenge to a juror to be pretextual and seated the juror. The record supports the court's credibility-based determination, which is entitled to great deference on appeal (see People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352).
Defendant was not deprived of his right to be present during the court's discussion with a deliberating juror, because the court did not deliver any substantive instructions (compare People v. Herrmann, 280 A.D.2d 349, lv denied 96 N.Y.2d 919, with People v. Ginyard, 282 A.D.2d 256, appeal withdrawn 96 N.Y.2d 862).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.