Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered December 15, 2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of 6 years to life, 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.
Mazzarelli, J.P., Sweeny, Nardelli, Freedman, Richter, JJ.
On March 24, 2001, NYPD Sergeant David Ehrenberg was supervising a group of detectives in an undercover narcotics operation, and, along with Detective Dino Polichetti, was parked in an unmarked van on Riverside Drive between 136th and 137th Streets, when a white Mazda with New Jersey license plates parked in front of them, next to a fire hydrant. The officers watched as defendant exited the Mazda's passenger side, and a man later identified as Willy Allison exited the driver's side. The two men walked north to a stairway which led to an underpass beneath Riverside Drive.
Approximately 15 minutes later, defendant and Allison returned to the Mazda, and looked around them before getting into the car and driving away. The Mazda drove north on Riverside Drive, then made a U-turn between 138th and 139th Streets, crossing over a double yellow lines and pavement "zebra striping," which designated that crossing and turning were not permitted.
Ehrenberg and Polichetti then pulled away from the curb, made a U-turn, placed a red turret light on the van's dashboard, and honked the van's horn (the van, a rental, had no siren).
Riding in the Mazda's passenger seat, defendant turned around and looked through the car's rear window at the unmarked van, which was following directly behind. Turning east onto 136th Street, Allison drove the Mazda toward Broadway, where it came to a halt because of other cars stopped at a red light. At that point, defendant jumped out of the Mazda and ran south down Broadway. When defendant exited the car, Ehrenberg - who was still inside the unmarked van - was approximately five feet away, and could see that in his right hand, defendant carried a clear plastic bag containing a white substance, which he suspected was cocaine. Ehrenberg jumped out of the van and gave chase on foot, displayed his shield and yelled that he was a police officer. As defendant ran past a laundromat located at 3357 Broadway, he threw the plastic bag through the open door. Continuing to give chase, Ehrenberg did not see where the bag actually landed.
At 3333 Broadway, defendant ran toward a building entrance, but was stopped by a locked door and security guards. Ehrenberg drew his gun and ordered defendant to the ground, and defendant complied. With no prompting from Ehrenberg, defendant said, "What the f*** are you doing? I have no drugs on me."
After other officers arrived at the scene, Ehrenberg returned to the laundromat, where he was joined by Detective Edward Paris. An unidentified laundromat patron pointed to a nearby dryer, atop which sat a clear plastic bag containing a white substance which resembled the bag Ehrenberg had seen defendant throw into the laundromat. Subsequent testing revealed that the bag contained cocaine weighing slightly more than 2.25 ounces. There were other patrons in the laundromat at the time, including several children.
Meanwhile, Detective Polichetti continued to chase the Mazda as Allison drove it recklessly down Broadway, finally stopping the car after pointing his gun at Allison and pulling the van in front of the Mazda so that Allison could drive no farther.
Defendant did not testify, but Allison did. He testified that he and defendant had driven from Cliffwood, New Jersey, to New York City because Allison wanted to buy Timberland boots, which could be purchased for a good price in Manhattan. Allison parked his car on Riverside Drive between 136th and 139th Streets, then walked down a stairway toward Broadway, stopping along the way to drink some hot chocolate. Deciding they wanted to go to a restaurant before shopping, the two men then returned to the parked car.
Driving south on Riverside Drive, Allison made a legal left turn onto 136th Street, when he heard a screeching sound behind him, and, looking back, saw a van approaching. Allison claimed that he did not make a U-turn while on Riverside Drive. The van pulled beside the Mazda, and its driver pointed a gun at Allison. The van did not display a red flashing light, and Allison had no reason to believe the two men inside of it were police officers.
Thinking he was being "carjacked," Allison attempted to escape. At some point, defendant jumped out of the Mazda and ran down the street. After attempting to elude the van for several blocks, the van cut off the Mazda, forcing it to stop, whereupon a man with a gun approached, forced Allison to the ground, and began to ...