People v. Derosario

In this "buy and bust” operation, the undercover officer was given entry to an apartment where the various defendants were engaged in a cocaine-selling operation. The officer noted [534] the presence of substantial quantities of cocaine, drug paraphernalia and weapons. At some point during the transaction, the officer’s gun was removed and pointed at his head. When the officer was permitted to leave, after having purchased "crack” cocaine for $25, and after having been in the defendant’s presence for ten minutes, he transmitted an accurate description of the several occupants of the apartment to the backup team, who, without a warrant, entered the apartment, secured the premises, and found contraband and weapons in plain view. The defendant and the other perpetrators matched the descriptions transmitted by the undercover officer. That evening, the undercover officer identified the defendant and the co-defendant Polanco at the police station. Considering the gravity and violent nature of the offenses, the certain knowledge that the perpetrators in the apartment were armed, the clear showing of probable cause, the likelihood that the defendant and the others would escape at the first indication of a police presence and the likelihood that contraband would be destroyed, the hearing evidence established sufficient exigency to provide a predicate for the warrantless search and seizure. (Cf., People v Cruz, 149 AD2d 151, 160.) In view of the face-to-face confrontation between the undercover officer and the defendant, the immediate transmission of a detailed description, and the confirmatory nature of the precinct house identification, it was not error for the Supreme Court to have summarily denied the defendant’s motion for a Wade hearing. (People v Wharton, 74 NY2d 921; People v Hendricks, 159 AD2d 396, lv denied 76 NY2d 736.) The station house identification by the officer, who received special training in undercover narcotics operations, though made some four or five hours after his initial observation of the defendant, would not be " 'of a kind ordinarily burdened or compromised by forbidden suggestiveness, warranting a lineup procedure or Wade hearing’ ” (People v Roberts, 169 AD2d 284, 289, quoting People v Wharton, supra, at 922). Despite the "harrowing” nature of the incident, there is no indication from the record that the officer’s attention was not focused on the suspects in the apartment, as the dissent suggests. Rather, the officer’s ability to view the defendant and the other occupants was demonstrated by his subsequent ability to provide the backup team with accurate descriptions. Moreover, as this court noted in the co-defendant Polanco’s case, the officer had the presence of mind to persuade the perpetrators that he was simply a buyer and not a police [535] officer and further, to attempt to retrieve his gun after purchasing the drugs and before leaving the apartment. (People v Polanco, 179 AD2d 531 [decided herewith].) By failing to timely object to the court’s oral response to a verbal inquiry from jurors, the defendant waived any appellate challenge. (People v Buckley, 75 NY2d 843.) In any event, we note that the exchange was initiated by a jury note, and that the court’s response and follow-up questions only clarified certain points (see, United States v Ulloa, 882 F2d 41, 45). The court’s response to the jury’s request was meaningful (People v Almodovar, 62 NY2d 126). Further, we note that the court gave proper sequestration instructions. In conclusion, we find no abuse of discretion in the sentence imposed (People v Farrar, 52 NY2d 302). Concur —Carro, J. P., Rosenberger, Ellerin and Rubin, JJ.