Opinion
April 6, 2000.
Judgment, Supreme Court, New York County (Arlene Silverman, J., at suppression hearing; Bruce Allen, J., at jury trial and sentence), rendered February 11, 1998, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4+ to 9 years, unanimously affirmed.
Joseph A. Gershman, for respondent.
Donald A. Harwood, for defendant-appellant.
SULLIVAN, P.J., NARDELLI, ELLERIN, WALLACH, ANDRIAS, JJ.
Defendant's suppression motion was properly denied. There was no requirement that the People produce the undercover drug purchaser at the suppression hearing in order to establish probable cause (People v. Petralia, 62 N.Y.2d 47, 51-52, cert. denied 469 U.S. 852). The apprehension team had probable cause to arrest defendant and his two cohorts based on the "ghost" officer's observation of defendant and his two companions in contact with the undercover officer at a park bench, followed by the undercover officer's pre-arranged "positive buy" signal upon leaving the park (see,People v. Ketcham, 93 N.Y.2d 416, 421). In turn, the backup team was entitled to rely on the knowledge imputed to the ghost, who transmitted the suspects' descriptions and location. Upon arriving at the park entrance, the backup team saw three men who matched the sufficiently detailed joint description standing within a few feet of one another. Contrary to defendant's argument, "there was no uncertainty concerning the identity of the individuals participating in the drug transaction." (People v. Amoateng, 141 A.D.2d 398, 400, lv denied 73 N.Y.2d 852). As the suspects were being detained, the ghost transmitted over the radio that the team had apprehended the right persons.
The verdict was based on legally sufficient evidence. The trial evidence established that defendant "steered" the undercover to the other participants and acted as an intermediary during the drug transaction.
The court properly declined to issue an agency instruction. The evidence as a whole failed to support any reasonable view that defendant, who had no relationship with the undercover buyer, acted solely on the buyer's behalf (see, People v. Herring, 83 N.Y.2d 780). Contrary to defendant's argument, the undercover officer's description of defendant's role as an intermediary cannot be read as supporting an agency defense.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.