Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered September 13, 2006, convicting him of burglary in the second degree and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Dowling, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony. Justice Fisher has been substituted for former Associate Justice McCarthy (see 22 NYCRR 670.1[c]).
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.
A. GAIL PRUDENTI, P.J., ROBERT A. SPOLZINO, STEVEN W. FISHER & JOHN M. LEVENTHAL, JJ.
ORDERED that the judgment is affirmed.
At a pretrial suppression hearing, Police Officer Elvis Vazquez testified that, while on patrol with his partner in an unmarked police car, he observed the defendant standing on the other side of the street, holding in his hand a glass pipe which the officer recognized as the type of pipe commonly used for smoking crack cocaine. The defendant then placed the pipe in his pants pocket. The officers approached the defendant, and Vazquez's partner reached into the defendant's pocket and retrieved the pipe. The officers placed the defendant under arrest, and a search of the defendant incident to the arrest yielded a screwdriver, a utility tool kit, two flashlights, a pocketknife, a key ring holding between 30 and 40 keys, and a wallet containing, among other things, a MetroCard issued by the New York City Transit Authority. Vazquez turned the evidence over to Detective William Van Pelt, who, upon investigation, discovered that the MetroCard recovered from the defendant had been purchased with a debit card belonging to the victim of a recent burglary. The burglary victim viewed a lineup, and identified the defendant as the person who had burglarized her home. After a jury trial, the defendant was convicted of burglary in the second degree and petit larceny.
The Supreme Court properly denied those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony as the fruits of an illegal search and seizure. The defendant does not challenge Vazquez's characterization of the object he saw the defendant holding as a crack pipe, or Vazquez's testimony that he had previously seen pipes of that type and was aware that they are used for smoking crack cocaine, and we perceive no reason to disturb the Supreme Court's determination to credit Vazquez's testimony. A crack pipe is a telltale sign of narcotics possession (see People v Edwards, 160 AD2d 501; cf. People v Alexander, 37 NY2d 202; People v Goggans, 155 AD2d 689). The defendant's possession of a such a pipe in plain view in a public place gave the arresting officers reason to believe that the defendant unlawfully possessed a controlled substance, consisting of, at least, crack cocaine residue (see People v Edwards, 160 AD2d at 501). The officers, therefore, had probable cause to arrest and search the defendant (see People v Manigault, 247 AD2d 255; People v Goggans, 155 AD2d at 690-691). We further note that Vazquez testified that, several months earlier, he had arrested the defendant at the same location for possessing cocaine residue.
As noted by our dissenting colleague, the Court of Appeals has recognized that, although a glassine envelope is a "telltale sign of heroin" since it is a container in which heroin is frequently sold (People v McRay, 51 NY2d 594, 601), a person's mere passing of such an envelope, without more, does not establish probable cause to believe that the person has engaged in a sale of narcotics, because—although it is rarely the case in the context of on-the-street exchanges—such an envelope also has legitimate uses (see People v McRay, 51 NY2d at 601-604; People v Oden, 36 NY2d 382, 385; People v Corrado, 22 NY2d 308, 313). In this case, however, the defendant was seen holding a pipe used for smoking crack cocaine, not a potentially innocuous object like an envelope. Moreover, the arresting officers needed only probable cause to believe that the defendant was in possession of narcotics, not that he had engaged in a sale of narcotics (see People v Eldridge, 103 AD2d 470, 474). While a crack pipe is not a container in which narcotics are sold, and its possession is not itself a criminal offense, such a pipe is a device for ingesting narcotics, inside which the officers could reasonably expect to find at least traces of a controlled substance. It is undisputed that Vazquez recognized the object possessed by the defendant as a crack pipe, which distinguishes this case from People v Richie (77 AD2d 667), where it was not immediately apparent to the arresting officers that the silver metal pipe in the defendant's automobile was evidence of his possession of marijuana.
Contrary to the defendant's contention, the police officers' failure to voucher the MetroCard recovered from his wallet did not prevent the People from establishing that the MetroCard purchased with the complainant's debit card and the MetroCard recovered from the defendant were one and the same. The circumstances presented in this case—where Vazquez seized the wallet from the defendant and maintained possession of it, without removing the MetroCard, until he turned it over to Van Pelt, and Van Pelt recorded the serial number of the MetroCard and placed the card in the case folder relating to the defendant's case—provide " reasonable assurances of the identity and unchanged condition' of the evidence" (People v Julian, 41 NY2d 340, 343, quoting Amaro v City of New York, 40 NY2d 30, 35). Thus, any deficiencies in the chain of custody did not render the MetroCard and the related evidence inadmissible (see People v Julian, 41 NY2d at 344).
The defendant's contention that the Supreme Court erred in permitting the People to elicit hearsay testimony from Van Pelt and the complainant is unpreserved for appellate review, since the defendant's only two objections to the complained-of testimony were sustained by the court, and the defendant did not thereafter request any curative instructions or a mistrial (see People v Heide, 84 NY2d 943; People v Merchant, 150 AD2d 730, 731). Similarly, the defendant failed to preserve for appellate review his contention that the court erroneously permitted Van Pelt to testify that the defendant's possession of a card containing the Miranda warnings (see Miranda v Arizona, 384 US 436) was typical of a person who had been arrested in the past, since the court subsequently delivered a curative instruction and struck the testimony at issue from the record, and the defendant did not object to the adequacy or timing of the court's corrective action (see People v Everson, 100 NY2d 609; People v Heide, 84 NY2d at 944; People v Williams, 46 NY2d 1070). Nor did the defendant preserve for appellate review his contention that the People elicited testimony suggesting that he had a propensity to commit burglaries, since he voiced no objection to the challenged testimony. The defendant's further contention that the prosecutor improperly elicited testimony about the contents of certain documents which the court had precluded from evidence is also unpreserved for appellate review and, in any event, is without merit.
The defendant was not deprived of his right to the effective assistance of counsel (see Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137, 147).
The defendant's remaining contention is ...