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The Officer responded that he saw the defendant in the house on May 7, 1992


A Suffolk Cocaine Possession Lawyer said that this is an appeal by the defendant from a judgment of Supreme Court, Suffolk County, rendered October 22, 1987, convicting him of criminal possession of a controlled substance in the fourth degree and criminal possession of controlled substance in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

The issue in this case is whether the evidence should be suppressed.

The court in deciding the case said that, preliminarily, it note that the evidence adduced at the suppression hearing sufficiently established the existence of probable cause to arrest the defendant. An experienced narcotics officer testified that, in an area which is known for its high incidence of narcotics trafficking, he observed the defendant exchange several small clear plastic bags for a sum of United States currency. This officer, together with his partner, thereafter followed the defendant into a nearby establishment, known as the “Blue Room”. Several patrons alerted the defendant to the fact that the police had arrived upon the scene, and the defendant was observed by both officers throwing a small plastic bag toward the bar area. The officer subsequently retrieved the bag, and discovered that it contained what he believed to be cocaine. The retrieval of the plastic bag discarded by the defendant, which appeared to contain cocaine, provided the necessary probable cause to arrest him.

The court said that, contrary to the defendant’s contentions, the trial court did not err in permitting testimony regarding money which was discovered on the defendant’s person at the time of his arrest. In this respect, we note that no objection to this testimony was made until after closing arguments, and after the jury was instructed. Thus, any issue of law with respect to this claim is not properly preserved for our review. In any event, in light of the fact that the defendant was charged with criminal possession of a controlled substance in the third degree, which encompasses intent to sell, this testimony was properly admitted as it is relevant to the crimes charged.

The court notes that the trial court erred in allowing the Officer to testify on re-direct examination that he had previously arrested the defendant for possession of cocaine at the same location. In cross-examining the Officer, the defense counsel had merely sought to determine the basis for the officer’s testimony that the defendant had been living in the house in question during 1992. The Officer responded that he saw the defendant in the house on May 7, 1992, when he executed a search warrant. Contrary to the conclusion of the trial court, this did not open the door to the Officer testimony that on May 7, 1992, he arrested the defendant for possession of cocaine since that was beyond the subject matter of the cross-examination about the Office’s knowledge of the defendant. The trial court, therefore, erred in allowing the Officer’s testimony about the defendant’s prior narcotics arrest.

The portion of the prosecutor’s summation to which the defendant assigns error, while improper, does not warrant reversal. In this regard, we note that the jury was well informed of the applicable principles of law, and was given a curative the comment was made.

Viewing the evidence in the light most favorable to the prosecution the court finds that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence. Finally, the court finds that the sentence the defendant received was not unduly harsh or excessive.

Accordingly, the court held that the judgment is affirmed.

If in a cocaine possession case, the evidence obtained is considered as the fruit of a poisonous tree, there is a need for the representation of a Suffolk Drug Possession Attorney and Suffolk Cocaine Possession Attorney at Stephen Bilkis and Associates. Call us.

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