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Detective continued to chase the Mazda

This is an appeal where defendant was convicted 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 six years to life, unanimously affirmed.

A New York Criminal lawyer said that in March 2001, New York Police Department Sergeant was supervising a group of detectives in an undercover narcotics operation, and, along with a Detective was parked in an unmarked van on Riverside Drive, 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 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 the mane 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 double yellow lines and pavement “zebra striping,” which designated that crossing and turning were not permitted.

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, the man 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, the person 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 drug.

As defendant ran past a laundromat, he threw the plastic bag through the open door. Continuing to give chase, Ehrenberg did not see where the bag actually landed. Defendant ran toward a building entrance, but was stopped by a locked door and security guards. Ehrenberg drew his weapon and ordered defendant to the ground, and defendant complied.

After other officers arrived at the scene, Ehrenberg returned to the laundromat, where he was joined by Detective. 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, the Detective continued to chase the Mazda as the driver drove it recklessly down Broadway, finally stopping the car after pointing his gun at him and pulling the van in front of the Mazda so that the driver could drive no farther.

On summation, defense counsel argued that the police work was “sloppy” because the police did not bring down to the station house an elderly man who had pointed out the cocaine in the laundromat. Defendant further argued: “[T]his is not a situation where a police officer stops a person and drugs are on the person.

The emphasis on the criminal defendant’s status as a drug dealer, neither alleged nor proven, may have exceeded the bounds of fair comment and was better left unsaid, but “the over-all effect of the prosecutor’s summation was within the range of acceptability”, particularly since it was defendant who suggested first that he was a random and innocent victim of police officers looking to connect the drugs to anybody in general. The comments certainly “did not amount to a persistent pattern of misconduct warranting reversal, particularly in light of the overwhelming evidence of defendant’s guilt”. The Criminal Defendant and his cohort were first observed by police officers acting suspiciously both after they parked the car, and before they reentered it. After they made an illegal turn and the police put on the warning light, they did not stop but hastened to make a getaway. After exiting the vehicle, and despite being warned of the presence of police officers, defendant continued to run, and discarded a plastic bag which he could just as easily have left in his car, if it did not contain contraband. When the bag was located in the proximate area where it was discarded, it was found to contain cocaine. In light of such evidence, “there is not a significant likelihood” that the jury verdict, which was obviously the best barometer of the credibility of all the trial testimony, was unduly affected by the prosecutor’s categorization of defendant as a drug dealer or any of the other questionable comments.

Defendant also argues that testimony elicited by the prosecutor as to the value of the cocaine and the yield it could produce was irrelevant to the crime for which defendant was being tried criminal possession of a controlled substance in the second degree and was “devastatingly prejudicial,” as it suggested to the jury that defendant possessed the drugs with an intent to sell them. Yet, while irrelevant to the criminal charge against defendant, evidence of the cocaine’s value and the number of doses it might yield was relevant to the question of whether and to what extent it was plausible that a person other than defendant might have left the bag of cocaine in the laundromat, as defendant claimed.

On appeal, defendant argues that the Supreme Court’s charge that the police could stop the Mazda based upon their belief that a traffic infraction had occurred, without regard to whether there was a separate primary motive for the stop, requires reversal because it improperly required the jury to determine the legal issue of probable cause, diverted the jury from a full consideration of the police officers’ credibility, bolstered the People’s case, and was unnecessary and unduly prejudicial. Yet, the jury charge was taken verbatim from a case law, and constitutes an accurate statement of the law. Moreover, since defendant had suggested in his opening statement that the stop was based upon racial profiling, the charge was necessary, since it explained that if the jury found credible the police testimony that the police observed an illegal U-turn, it could find that there was a legal justification for the stop. Otherwise, the jury might conclude that notwithstanding the traffic infraction, the stopping of the car by the police was unjustified because of racial profiling, to which defense counsel had made reference. We see no prejudice in a charge which permits the jury to understand the circumstances under which a police officer may stop a vehicle, particularly when defendant has suggested the possibility of illegal conduct. Burglary was not charged.

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