Opinion
December 20, 1990
Appeal from the Supreme Court, Bronx County, Ivan Warner, J.
While on uniformed motor patrol, Police Officers DiCaprio and Fowler observed four males "loitering" in the hallway of a drug-prone location. After exiting the patrol car, Officer DiCaprio observed defendant from less than 10 feet away holding a white plastic bag packed so tightly that the outline of vials was discernible. Defendant fled upon seeing the officer, dropping the bag during the course of the officer's pursuit.
The officer's testimony was not incredible as a matter of law. The officer testified that he observed the outline of vials, not the contents. The denial of suppression was not "`manifestly erroneous'" or "`plainly unjustified'" by the evidence as to warrant reversal. (People v. Vasquez, 166 A.D.2d 194, 195.)
The observation of vials is the "`hallmark of an illicit drug exchange'". (People v. Goggans, 155 A.D.2d 689, 690.) The officer, having observed the vials, combined with his prior knowledge that this was a drug-prone location, was justified in detaining defendant. The recovery of the bag discarded during flight was therefore proper. (See, People v. Leung, 68 N.Y.2d 734.)
The prosecutor's comparison of defense counsel's summation to a "bouncing ball" during summation was within the bounds of permissible rhetorical comment. (See, People v. Rivera, 159 A.D.2d 255, lv. denied 76 N.Y.2d 795.) The prosecutor's comments that the People's witness had no motive to lie were a fair response to the defense summation.
At trial the court failed to charge the jury regarding the evaluation of a police officer's testimony. "[B]ecause the only witnesses herein were police witnesses and because defendant did not testify and, thus, his testimony was not singled out for special scrutiny, the omission [of a police witness charge] was not prejudicial to defendant". (People v. Miller, 159 A.D.2d 224, lv. denied 76 N.Y.2d 739.)
Concur — Murphy, P.J., Sullivan, Carro, Ellerin and Smith, JJ.