2 No. 27
The People &c.,
Respondent,
v.
John Jones,
Appellant.
_________________________________________________________________
2001 NY Int. 34
March 29, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Reed Smith, for appellant.
James A. Dolan, for respondent.
_________________________________________________________________
LEVINE, J.:
Defendant was charged with Criminal Sale of a Controlled Substance in
the Third Degree (Penal Law § 220.39(1) ) based upon allegations that,
on November 7, 1996, he sold cocaine to an undercover police officer.
Prior to trial, defendant moved to suppress the physical evidence
resulting from his arrest, including allegedly prerecorded "buy money"
seized from his person. In support of the motion, defense counsel
affirmed, on information and belief, that defendant was not engaged in
any criminal activity at the time of the arrest that would establish
independent grounds to stop him. In addition, defense counsel averred
that, based on a review of the felony complaint and other documents,
defendant appeared to have been arrested pursuant to a "buy and bust"
operation, and noted that such operations usually involve a radio call
from an undercover purchasing officer to a back-up team that includes
a description of the alleged seller. That description is then used by
the back-up team to identify and detain the seller. Defendant's motion
to suppress essentially challenged the sufficiency of the description
given by the undercover officer to the back-up team.
At the outset, the affidavit submitted by defense counsel set forth
that any description relied upon in order to identify and arrest
defendant was not disclosed to him. Nonetheless, the affidavit alluded
to two alleged deficiencies with respect to the description and
contended that the police thus lacked probable cause to arrest
defendant. Specifically, the affidavit pointed out that defendant may
SNIPPETS:
Defendant was charged with Criminal Sale of a Controlled Substance in the Third Degree )
Prior to trial, defendant moved to suppress the physical evidence resulting from his arrest,
In support of the motion, defense counsel affirmed, on information and belief, that defendant
In addition, defense counsel averred that, based on a review of the felony complaint and
Specifically, the affidavit pointed out that defendant may not have matched the description
The People answered and opposed the motion on the ground that defendant did not deny engaging
The People asserted that a member of the back-up team, Officer Salerno, had received
The suppression court summarily denied defendant's motion on the ground that "defendant
On appeal, the Appellate Division upheld the summary denial of the motion to suppress on the
A Judge of this Court granted leave to appeal.
The required factual allegations may be based upon information and belief, provided that the
The court may, with two exceptions not applicable here,summarily deny a motion to suppress if
In People v Mendoza and its companion cases (82 2 415, supra), this Court comprehensively
Two of the cases decided with Mendoza were buy and bust cases (People v Martinez; Matter of
the only facts alleged on the suppression motions were that each defendant was not engaged in
Thus, as the movants' only factual allegations in Martinez and George J. related exclusively
People v Mendoza is also instructive on whether a denial of participation in the sale in a
Since, under Dodt, it is clearly possible to establish the unlawfulness of an arrest based
In this case, there had been no disclosure on the part of the People, by either voluntary
In connection with his assertion that he might not have fit the radioed description, it was
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