        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1383
KA 12-02255
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVON GRIFFIN, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Donald E.
Todd, A.J.), rendered August 31, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of criminal possession of a controlled substance in
the third degree (Penal Law § 220.16 [1]), defendant contends that
County Court erred in denying his motion to suppress cocaine and
marihuana he possessed at the time of his arrest. We reject that
contention. The evidence adduced at the suppression hearing showed
that the police in Syracuse arrested a person for illegally possessing
hydrocodone pills, and that person thereafter became a confidential
source (CS). Upon arrest, the CS offered to cooperate with the police
by arranging a drug transaction with a dealer who previously sold
crack cocaine to him. The police agreed to work with the CS, who, in
the presence of the officers, called the dealer on his cell phone to
arrange a drug transaction. Specifically, the dealer agreed to sell
one ounce of crack cocaine to the CS for $1,400 in front of Dully’s
Market on the north side of the city.

     Shortly after that call was made, defendant, riding as a
passenger in a black Jeep, pulled into the parking lot at Dreams
Market, which was around the corner from Dully’s Market. Staked out
in the area, a detective observed defendant exit the vehicle and make
a phone call. At that time, the CS received a phone call from the
dealer. The detective testified that he could hear defendant speaking
on the phone from approximately 30 feet away, and concluded that he
was speaking to the CS, whose end of the conversation he was hearing
via the speaker phone of a fellow officer who was with the CS. At the
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                                                         KA 12-02255

prompting of the police, the CS told the dealer to drive over to
Dully’s Market. Moments later, the black Jeep arrived at Dully’s
Market with defendant in the front passenger’s seat. The police
converged on the vehicle, removed defendant therefrom, and placed him
in handcuffs. In response to questions posed by the officers,
defendant admitted that he possessed cocaine, which he said was for
his personal use, and a search of his person yielded cocaine and
marihuana. The police also found cocaine on the floor in the front
seat of the Jeep.

     After defendant was arrested and placed in the backseat of a
patrol vehicle, an officer observed him reaching into the back of his
pants. Defendant was therefore removed from the vehicle to be
searched more thoroughly, but he broke away and fled on foot.
Defendant was apprehended after he tripped and fell, whereupon the
officers observed several bags of cocaine on the ground where
defendant had been prone. After he was indicted, defendant moved to
suppress the drugs seized by the police, but the court denied the
motion. The court thereafter appointed new counsel for defendant, who
moved to suppress statements that defendant made to the police. The
court granted that motion in part. Defendant nevertheless elected to
plead guilty to criminal possession of a controlled substance in the
third degree in exchange for a sentence promise from the court of
seven years in prison plus a period of postrelease supervision. We
now affirm.

     Defendant contends that the court erred in denying his motion to
suppress the cocaine seized by the police because the detective’s
testimony that he overheard defendant speaking on his cell phone from
a distance of 30 feet is incredible as a matter of law. As a
preliminary matter, we note that defendant did not advance that
particular contention at the suppression hearing, and it is therefore
unpreserved for our review (see CPL 470.05 [2]). In any event, in
reviewing a determination of a suppression court, “great weight must
be accorded its decision because of its ability to observe and assess
the credibility of the witnesses, and its findings should not be
disturbed unless clearly erroneous” (People v Mejia, 64 AD3d 1144,
1145, lv denied 13 NY3d 861 [internal quotation marks omitted]).
Here, the court expressly credited that portion of the detective’s
testimony, and we perceive no basis in the record for us to set aside
the court’s credibility determination in that regard. Unlike
defendant, we do not find it impossible to believe that the detective
was able to hear defendant speaking from a distance of 30 feet.
Moreover, the mere fact that the court did not credit another portion
of the detective’s testimony did not compel the court to disregard his
entire testimony.

     In any event, even if the detective did not hear what defendant
said on his cell phone while defendant was engaged in a conversation
in the parking lot at Dreams Market, the police nevertheless had
probable cause to arrest defendant when he arrived moments later at
Dully’s Market. We conclude that it was more probable than not that
defendant was the person speaking on the phone to the CS and making
arrangements for the sale of crack cocaine in his possession and,
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                                                         KA 12-02255

thus, the “facts and circumstances [were] sufficient to warrant a
prudent [person] in believing that the [suspect] had committed or was
committing an offense” (Fitzpatrick v Rosenthal, 29 AD3d 24, 28, lv
denied 6 NY3d 715 [internal quotation marks omitted]).

     Defendant further contends that the court erred in refusing to
conduct a Huntley hearing with respect to the admissibility of
statements he made to the police that were referenced in the People’s
CPL 710.30 notice. We reject that contention. There were four sets
of statements referenced in the CPL 710.30 notice. Defendant conceded
that the first set of statements—those he made on the phone to the CS
in arranging the drug transaction—were not subject to suppression
because defendant was not in custody at the time and thus the
statements were voluntary in nature. Based on evidence adduced at the
Mapp hearing, the court suppressed the second and third sets of
statements, i.e., those statements defendant made after he was
arrested but before he fled. Although the court refused to suppress
the fourth set of statements, it nevertheless ruled that those
statements would be inadmissible at trial because they were more
prejudicial than probative. Consequently, the only statements that
the People were allowed to use at trial were those that defendant
correctly conceded were voluntary. Thus, there was no need for a
Huntley hearing.

     We have reviewed defendant’s remaining contention and conclude
that it does not warrant reversal.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
