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People v. Berring

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 13, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
EARL BERRING, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Michael J. Obus, J. at suppression hearing; Edward J. McLaughlin, J. at jury trial and sentence), rendered June 5, 2007, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender whose prior felony conviction was a violent felony, to an aggregate term of 6 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Nardelli, Moskowitz, Renwick, Freedman, JJ.

976/06

The hearing court properly denied defendant's request to call the undercover officer at the suppression hearing since the hearing evidence did not raise any substantial question as to the legality of the arrest (see People v Petralia, 62 NY2d 47 [1984], cert denied 469 US 852 [1984]; People v Medina, 9 AD3d 251 [2004], lv denied 3 NY3d 739 [2004]). In this unusual "buy and bust" case, the undercover officer who bought the drugs seized defendant himself and held him for the arresting officer. The arresting officer testified that he observed the undercover officer struggling with defendant, who wore the same color shirt as one of the described sellers, and also testified that the undercover officer pointed out a bag on the ground containing numerous individual drug packages and stated that defendant had dropped it. The chain of events, viewed as a whole, clearly warranted the conclusion that there was a drug transaction and that defendant was one of the sellers (see People v Quezada, 305 AD2d 207 [2003], lv denied 100 NY2d 586 [2003])

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090113

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