The People, Respondent,v.Joel Joseph, Appellant.BriefN.Y.March 31, 2016APL-2015-00001 To be argued by MANU K. BALACHANDRAN (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOEL JOSEPH, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov GRACE VEE MANU K. BALACHANDRAN ASSISTANT DISTRICT ATTORNEYS Of Counsel AUGUST 27, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT ......................................................................................... 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................... 2 INTRODUCTION................................................................................................................ 3 THE DARDEN PROCEEDINGS .................................................................................... 8 THE SUPPRESSION HEARING ................................................................................... 11 The People’s Case ..................................................................................................... 11 The Defense Case ..................................................................................................... 19 The Suppression Arguments ................................................................................... 22 The Hearing Court’s Decision ................................................................................ 25 A. Findings of Fact ........................................................................................ 26 B. Conclusions of Law .................................................................................. 29 THE PLEA AND SENTENCING PROCEEDINGS ................................................. 31 THE APPELLATE DIVISION’S DECISION .............................................................. 32 SUMMARY OF ARGUMENT ......................................................................................... 34 POINT DEFENDANT’S SUPPRESSION CLAIM PRESENTS A MIXED QUESTION OF LAW AND FACT THAT IS UNREVIEWABLE BY THIS COURT. IN ANY EVENT, THE RECOVERY OF THE BAG OF COCAINE FROM DEFENDANT WAS ENTIRELY LAWFUL ......................................................................................................... 36 A. Defendant’s Suppression Claim Presents an Unreviewable Mixed Question of Law and Fact Since it Rests on Nothing More than a Challenge to the Factual and Credibility Determinations, and the Reasonable Inferences Drawn Therefrom, Made by the Lower Courts. ..................................................................................... 40 B. The Task Force had Probable Cause to Believe that Defendant had Committed a Crime when he Removed the Plastic Bag from the Trunk of a Known Narcotics Trafficker’s Car. In the Alternative, Defendant’s Actions Provided the Task Force with Reasonable Suspicion which Ripened into Probable Cause upon Defendant’s Flight from and Violent Struggle with the Police. ... 46 1. The Task Force Had Reliable Information that Gonzalez was a Narcotics Trafficker on the Day of Defendant’s Arrest. ....................................................................................................... 50 2. The Task Force Had Probable Cause to Arrest Defendant when he Removed a Plastic Bag from the Trunk of Gonzalez’s Car. ........................................................................... 56 3. The Task Force Had at least Reasonable Suspicion that Defendant had Committed a Crime when he Removed the Plastic Bag from the Trunk of Gonzalez’s Car, thus Justifying a Forcible Stop of Defendant. That Reasonable Suspicion Ripened into Probable Cause when Defendant Actively Fled From, and Violently Struggled with, the Police. ..................... 63 CONCLUSION ................................................................................................................... 71 -ii- TABLE OF AUTHORITIES FEDERAL CASES Draper v. United States, 358 U.S. 307 (1959) ................................................................... 48 STATE CASES Matter of Shaheem F., 229 A.D.2d 436 (2d Dept. 1996) ................................................ 62 People v. Balas, 104 A.D.2d 1039 (2d Dept. 1984) .......................................................... 59 People v. Batista, 88 N.Y.2d 650 (1996) ............................................................................ 47 People v. Bianchi, 85 N.Y.2d 1022 (1995) ........................................................................ 43 People v. Blake, 123 A.D.3d 838 (2d Dept. 2014) ........................................................... 67 People v. Bora, 83 N.Y.2d 531 (1994) ............................................................................... 43 People v. Brown, 24 N.Y.2d 421 (1969) ............................................................................ 65 People v. Bush, 107 A.D.3d 1581 (4th Dept. 2013) ........................................................ 67 People v. Campbell, 87 N.Y.2d 855 (1995) ....................................................................... 43 People v. Carrasquillo, 54 N.Y.2d 248 (1981) ............................................................. 48, 60 People v. Chestnut, 51 N.Y.2d 14 (1980) .......................................................................... 43 People v. Coleman, 183 A.D.2d 840 (2d Dept. 1992) ..................................................... 64 People v. Darden, 34 N.Y.2d 177 (1974) ............... 1, 5, 8-9, 11, 22, 26, 29, 32, 34, 52-54 People v. Davis, 111 A.D.2d 565 (3d Dept. 1985) ........................................................... 50 People v. DeBour, 40 N.Y.2d 210 (1976) ............................................................. 47-48, 64 People v. DiMatteo, 62 A.D.3d 418 (1st Dept. 2009) ............................................... 59, 64 People v. Eldridge, 173 A.D.2d 975 (3d Dept. 1991) ...................................................... 49 People v. Francois, 14 N.Y.3d 732 (2010) ......................................................................... 43 -iii- People v. Goggans, 155 A.D.2d 689 (2d Dept. 1989) ..................................................... 62 People v. Greenidge, 91 N.Y.2d 967 (1988) ..................................................................... 43 People v. Hall, 234 A.D.2d 478 (2d Dept. 1996) .............................................................. 59 People v. Hanlon, 36 N.Y.2d 549 (1975) .......................................................................... 56 People v. Harrison, 57 N.Y.2d 470 (1982) .................................................................. 43, 45 People v. Hollman, 79 N.Y.2d 181 (1992) ........................................................................ 48 People v. Howard, 22 N.Y.3d 388 (2013) ......................................................................... 44 People v. Jenkins, 44 A.D.3d 400 (1st Dept. 2007) ......................................................... 69 People v. Johnson, 66 N.Y.2d 398 (1985) ......................................................................... 48 People v. Jones, 186 A.D.2d 681 (2d Dept. 1992) ........................................................... 59 People v. Jones, 90 N.Y.2d 835 (1997) ........................................................... 45, 49, 58, 62 People v. Joseph, 121 A.D.3d 445 (1st Dept. 2014) ................................................ 6-8, 32-34, 41-42, 45, 50-51, 54, 57, 62-63, 65-66, 68-69 People v. Knight, 94 A.D.3d 1527 (4th Dept. 2012) ....................................................... 54 People v. Martin, 19 N.Y.3d 914 (2012) ............................................................................ 46 People v. Martinez, 80 N.Y.2d 444 (1992) ........................................................................ 68 People v. McIntosh, 96 N.Y.2d 521 (2001) ...................................................................... 43 People v. McRay, 51 N.Y.2d 594 (1980) ........................................................ 40, 43, 48, 62 People v. Mercado, 68 N.Y.2d 874 (1986) ............................................................ 48, 60-61 People v. Miner, 42 N.Y.2d 937 (1977) ............................................................................. 48 People v. Moore, 6 N.Y.3d 496 (2006) .................................................................. 65, 68-69 People v. Moore, 93 A.D.3d 519 (1st Dept. 2012) ........................................................... 67 People v. Munoz, 205 A.D.2d 452 (1st Dept. 1994) ........................................................ 56 People v. Pines, 99 N.Y.2d 525 (2002) .............................................................................. 46 -iv- People v. Powell, 32 A.D.3d 544 (2d Dept. 2006) ........................................................... 49 People v. Prochilo, 41 N.Y.2d 759 (1977) ......................................................................... 67 People v. Raosto, 110 A.D.3d 524 (1st Dept. 2013) ........................................................ 54 People v. Ruiz, 190 A.D.2d 572 (1st Dept. 1993) ............................................................ 69 People v. Schalich, 218 A.D.2d 398 (1st Dept. 1996) ...................................................... 62 People v. Selby, 82 A.D.3d 433 (1st Dept. 2011) ....................................................... 49, 59 People v. Shoga, 89 A.D.3d 1225 (3d Dept. 2011) .......................................................... 54 People v. Shulman, 6 N.Y.3d 1 (2005) ............................................................................... 48 People v. Telesco, 207 A.D.2d 920 (2d Dept. 1994)........................................................ 56 People v. Vandover, 20 N.Y.3d 235 (2012) ................................................................ 44, 46 STATE STATUTES CPL § 140.10(1) .................................................................................................................... 48 CPL § 470.35 ......................................................................................................................... 42 Darden Decision: A20 ......................................................................................................... 53 N.Y. Const. Art VI § 3 ......................................................................................................... 42 Penal Law § 220.16(1) .............................................................................................. 1, 5-6, 31 Penal Law § 220.21(1) ............................................................................................................ 5 Rule 12.4 .................................................................................................................................. 3 -v- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOEL JOSEPH, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted on December 31, 2014, defendant Joel Joseph appeals from an October 7, 2014, order of the Appellate Division, First Department. That order unanimously affirmed a March 6, 2012 judgment of the Supreme Court, New York County (Bruce Allen, J. at Darden hearing; Robert M. Stolz, J., at suppression hearing; Michael R. Sonberg, J. at plea and sentencing), convicting him, upon his guilty plea, of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). Defendant was sentenced, as a second felony drug offender, to a determinate prison term of six years, followed by three years of post-release supervision. Defendant is currently incarcerated pursuant to the judgment. COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Whether the Appellate Division’s determination that defendant was properly arrested and searched presents a mixed question of law and fact for which there is support in the record and is therefore unreviewable by this Court, given that defendant merely challenges the lower courts’ credibility determinations, findings of fact, and the reasonable inferences they drew from those facts? 2. Whether trained and experienced narcotics officers had probable cause to arrest defendant after observing a known narcotics trafficker carry a white plastic bag from his apartment and drive more than 100 blocks to a street corner in Harlem, where defendant approached the drug dealer’s car, spoke briefly with the dealer, and then furtively removed the same white plastic bag from the car trunk and walked away with it? 3. Whether the narcotics officers’ observations described above provided them, in the alternative, with reasonable suspicion that defendant had committed a crime, which was elevated to probable cause upon defendant’s flight from the officers, after they had identified themselves, and his violent struggle with them when they tried to stop him? -2- INTRODUCTION Starting in about September 2009, the New York Drug Enforcement Task Force (“Task Force”), led by the federal Drug Enforcement Agency (“DEA”) and comprised of officers from the DEA and the New York Police Department (“NYPD”), began investigating Siffreido Gonzalez.1 The Task Force had received information from a registered confidential informant that Gonzalez was a drug dealer who was trafficking in narcotics from his apartment on Gold Street in Manhattan.2 Based on further information provided by the informant, as well as their own surveillance of Gonzalez over the course of several months, the Task Force concluded that Gonzalez’s behavior and activities were consistent with those of a drug dealer. In particular, Gonzalez had an erratic schedule in which he would enter and leave his apartment at odd times, he did not appear to go to any type of job with any regularity, and he would routinely carry plastic and paper bags that did not appear to contain food, clothes or other ordinary items. Significantly, too, Gonzalez’s apartment and his black BMW X6 were both registered under other peoples’ names, a practice commonly used by drug dealers to avoid detection by law enforcement. 1 Siffreido Gonzalez also went by the names Siffreido Alvarez and Siffreido Gonzalez Alvarez. To avoid confusion with Detective Sergio Alvarez, who participated in the investigation, Siffreido Gonzalez will be referred to as Gonzalez and the detective will be referred to as Alvarez in this brief. 2 Gonzalez’s apartment number and street address have been redacted pursuant to New York Law Reports Rule 12.4. -3- On February 1, 2010, Special Agent Frank Adamo, Detective Sergio Alvarez, and other members of the Task Force observed Gonzalez leave his apartment at about 7:15 p.m. carrying a white plastic bag of some weight. Gonzalez entered a nearby parking garage, exited in his BMW, and drove to a night club in the vicinity of 29th Street and 10th Avenue, where he stayed for about an hour. After leaving the club, Gonzalez drove to Harlem, where he double-parked his BMW in the vicinity of 127th Street and Adam Clayton Powell Boulevard. Gonzalez turned his hazard lights on and, a few minutes later, defendant approached the passenger side of the car. Gonzalez lowered the passenger side window, spoke briefly with defendant, and then opened the hatchback of the BMW. Defendant walked to the back of the car and, from the trunk, removed the white plastic bag that Gonzalez had carried out of his apartment earlier that evening. Defendant placed the bag in his jacket pocket and walked away, and Gonzalez immediately drove off. Detective Alvarez followed defendant and tried to stop him, but defendant fled into a building in a nearby housing project, even though Alvarez repeatedly shouted that he was a police officer and ordered defendant to stop. Alvarez finally caught up with defendant in the stairwell of the building. Defendant violently struggled with Alvarez to avoid being arrested, and he kicked Alvarez in the face. Finally, Alvarez, with the assistance of another Task Force member, was able to subdue defendant. In a search incident to defendant’s arrest, Alvarez recovered from defendant’s jacket -4- pocket the white plastic bag that defendant had removed from the trunk of Gonzalez’s car. The bag contained 350 grams of cocaine. By New York County Indictment Number 575/2010, filed on February 9, 2010, defendant was charged with Criminal Possession of a Controlled Substance in the First Degree (Penal Law § 220.21[1]) and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). Defendant moved to suppress the cocaine recovered from him. The People consented to a Mapp/Dunaway hearing, and also filed a motion for the court to hold a hearing pursuant to People v. Darden, 34 N.Y.2d 177 (1974), in connection with the information furnished by the confidential informant in this case. On June 29, 2011, an ex parte, in camera Darden hearing was held before the Honorable Bruce Allen. Following the hearing, in a written decision dated June 29, 2011, the court verified the confidential informant’s existence, and found that the informant was credible and had provided information to Detective Alvarez which gave reasonable cause to believe that drug activity was being carried out of the Gold Street apartment and that Siffreido Gonzalez was involved in that activity. On July 19, 2011, a Mapp/Dunaway hearing commenced before the Honorable Robert M. Stolz. The hearing took place over five days and concluded on August 23, 2011. On November 10, 2011, in a written decision, Justice Stolz denied defendant’s motion to suppress the cocaine recovered from him. -5- On January 24, 2012, defendant appeared before the Honorable Michael R. Sonberg and pled guilty to Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), in full satisfaction of the indictment. In exchange for his guilty plea, defendant was promised a determinate prison term of six years, followed by three years of post-release supervision. On February 8, 2012, the court imposed the promised sentence, but granted defendant a stay of execution. On March 6, 2012, defendant’s sentence was executed. On direct appeal to the Appellate Division, First Department, defendant claimed, inter alia, that the court erred in denying his suppression motion. Defendant argued that the Task Force officers had neither probable cause nor reasonable suspicion that he had committed a drug crime when he removed the white plastic bag from Gonzalez’s car. Additionally, defendant contended that even if his actions furnished the police with reasonable suspicion, the court erred in finding that that suspicion ripened into probable cause after he fled from and fought with the police (Defendant’s Brief to the Appellate Division, pp. 29-40). On October 7, 2014, the Appellate Division unanimously affirmed defendant’s conviction. People v. Joseph, 121 A.D.3d 445 (1st Dept. 2014) (A2-4).3 At the outset, the Appellate Division found that the Task Force officers had reason to 3 References preceded by “A” are to the appendix defendant filed in this Court along with his appellate brief. -6- believe that Gonzalez was trafficking drugs on the day of defendant’s arrest. Not only had a confidential informant provided reliable information that Gonzalez was trafficking in narcotics from his apartment, but the Task Force officers’ own surveillance over the course of several months confirmed that Gonzalez’s drug activity was ongoing and that it continued up to the time of defendant’s arrest. Id. (A2-3). On the night of the arrest, the Appellate Division recounted, the officers saw Gonzalez take a white plastic bag of “some weight” from his apartment and drive a lengthy distance to a high-crime area, where defendant approached the car, engaged in a very brief conversation with Gonzalez, and then removed the white bag from the trunk of the car. Based on their training and experience, as well as their knowledge that Gonzalez was involved in narcotics trafficking, the Appellate Division held that the officers reasonably concluded that defendant had received illegal drugs from Gonzalez, and that the Task Force therefore had probable cause to arrest defendant. Id. (A3). The Appellate Division found that the record also supported the hearing court’s alternative holding that the Task Force officers had reasonable suspicion that a crime had occurred based on the totality of their information and observations, and therefore were entitled to forcibly stop defendant after he removed the plastic bag from the car trunk. Defendant’s flight from the officers, after they had identified themselves, and his struggle when they tried to stop him, elevated the officers’ -7- suspicions and provided probable cause to arrest regardless of whether it already existed. Id. (A4). On December 31, 2014, the Honorable Jonathan Lippman granted defendant’s application for leave to appeal to this Court (A1). In this appeal, defendant argues that the courts below erred in concluding that there was probable cause to arrest defendant or, alternatively, reasonable suspicion that a crime had been committed when defendant removed the plastic bag from the trunk of Gonzalez’s car. THE DARDEN PROCEEDINGS On May 6, 2010, Justice Michael R. Sonberg granted defendant’s motion for a Mapp/Dunaway hearing on the People’s consent (A5). On March 15, 2011, the People filed a Motion for a Protective Order, requesting that the court hold a Darden hearing with respect to a confidential informant (A7). The People averred that defendant’s arrest for possession of narcotics had resulted, in part, from information received from the informant that Siffreido Gonzalez was using his apartment to store narcotics (A8). The People argued that disclosing the information provided by the confidential informant would reveal the informant’s identity, thus posing “a risk to the safety and life” of the informant and his or her family, as well as jeopardizing “pending cases and future criminal investigations” (A8). -8- In papers dated April 1, 2011, defendant opposed the People’s motion, arguing that the People had failed to establish “the presence of a substantial risk of either physical harm to the CI and/or to the integrity of pending or future cases” (A10). In that regard, defendant claimed, the People had offered “conclusory and boilerplate allegations” in support of their motion for a protective order (A10). At Justice Sonberg’s request, the People provided additional information, in an ex parte motion, supporting their request for a Darden hearing (A15). On April 19, 2011, the court granted the People’s application for a hearing, finding that the People had shown that “there exists a risk of harm to the informant” (A15-16). At the court’s invitation, on May 17, 2011, defense counsel filed a list of 42 questions that he wished to have the court ask the confidential informant at the Darden hearing (A16-19). Those questions included: 6. How many times has the CI provided reliable or unreliable information for the prosecution/police? 10. What agreement do you have with the prosecution/police to supply information? 13. Are you a registered CI? 14. With whom are you registered? 19. Have you ever been at [Gold Street], New York, New York? 20. In which apartment were you in? Please give apartment number. 21. How many times? -9- 22. When? 23. If yes, what did you see on those occasions? 24. Give dates? 28. Do you know defendant Alvarez/Gonzalez? 29. When did you last see him? 30. Under what circumstances? 31. Did you ever sell or purchase a controlled substance from him? 32. Did you ever see Alvarez/Gonzalez at [Gold Street], Apt. where narcotics are alleged to be stored? 37. Did you ever give a PO or DEA agent information about [Gold Street]? 38. Did you ever give a PO or DEA agent information about Alvarez/Gonzalez? 40. To whom did you give this information? 41. What information did you give? 42. What information of your own personal knowledge do you have about [Gold Street]? Defense counsel also asked whether the informant knew defendant (Question #25), and asked several other questions regarding information the informant may have had or furnished about defendant (Question #’s 26, 27, 33, 36, and 39) (A17-19). On June 29, 2011, an ex parte, in camera Darden hearing was held before Justice Bruce Allen. Following the hearing, Justice Allen issued the following written decision: -10- A Darden hearing was held before me on June 29, 2011. The confidential informant, who was paid by the police, testified as to his/her basis of knowledge of facts that gave cause to believe that drug activity was being carried out [of an apartment on] Gold Street and that Siffreido Gonzalez was involved. The informant further testified that he/she reported this information to Detective Alvarez. I found the testimony to be credible. Accordingly, I find that the People have met their burden to establish the existence of the informant and the nature of the information provided. (A20). THE SUPPRESSION HEARING The People’s Case In September 2009, Special Agent FRANK ADAMO4 of the federal DEA, Detective SERGIO ALVAREZ5 of the NYPD, and other members of a DEA-led New York Drug Enforcement Task Force received information from a registered confidential informant that Siffreido Gonzalez was trafficking in narcotics from an apartment on Gold Street in Manhattan (Adamo: A39-40; Alvarez: A249-50, A286, 4 Special Agent Adamo had worked for the federal DEA for over 13 years and had received academy and field training on how narcotics were packaged and sold in New York (Adamo: A37). Adamo had made or assisted in hundreds of narcotics-related arrests (Adamo: A38). 5 Detective Alvarez had worked for the NYPD for approximately 24 years, including six years in the New York Drug Enforcement Task Force and 14 years in the Manhattan North Narcotics Division (Alvarez: A247-48). Alvarez had made over one thousand narcotics-related arrests and had debriefed hundreds of confidential informants in narcotics cases (Alvarez: A248). Alvarez was the “handler” for the confidential informant in this case: he spoke to the informant and would relay to the rest of the drug enforcement team information that the informant provided (Alvarez: A249-50, A286). -11- A326). The informant told the Task Force that Gonzalez “dealt” “large amounts of cocaine” and that he “had a lot of money” (Alvarez: A305-06). Based on this information, the Task Force conducted “periodic” surveillance of Gonzalez, which began in September 2009 and continued for the next five months (Adamo: A53, A57, A85, A100; Alvarez: A250). The surveillance consisted of following Gonzalez when he came out of his apartment “to see what he did for the day” (Adamo: A53, A57, A100; Alvarez: A250). Police surveillance of Gonzalez became “more active” around January of 2010 (Adamo: A100). The Task Force began following Gonzalez “a couple of times a week” and a hidden video camera was installed in the hallway outside his apartment to allow the officers to “observe the coming and going of [Gonzalez] and other individuals” (Adamo: A40, A53, A57-58, A100; Alvarez: A250, A294).6 The camera was located approximately 20 feet from Gonzalez’s apartment and was able to get a “good picture of the face” of any person walking in and out of the front door (Adamo: A124, A157; Alvarez: A251). The officers were able to view footage recorded by the video camera from their laptop computers (Alvarez: A251). Based on their surveillance, the officers concluded that Gonzalez’s behavior and activities were “consistent” with those of a person “who was engaging in 6 Alvarez’s notes indicated that the camera was installed on December 21, 2009, while Adamo recalled that the camera was installed in January 2010 (A53, A59; Alvarez: A294, A306). During the defense case, James Panzitta, an investigative technology specialist with the DEA, testified that the camera was installed on December 9, 2009 (Panzitta: A441). -12- narcotics drug trafficking” (Adamo: A42-43). In particular, Gonzalez had a “very erratic” schedule: he would “come and go at odd times,” he would “come home for short periods of time and then leave,” and he did not appear to go “to any type of employment with any regularity” (Adamo: A42). When entering and leaving the apartment, Gonzalez would also “routinely” carry “packages” that did not seem “consistent” with ordinary packages that might contain food or laundry (Adamo: A42, A232-33, A242-43; Alvarez: A251). These packages, which “didn’t seem to be general flow,” included yellow and white plastic “bodega” bags, as well as paper bags with cord handles (Adamo: A42, A232-33).7 In addition, Gonzalez’s apartment and his car, a black BMW X6 which he parked in a nearby parking garage on Platt Street, were both registered under other peoples’ names (Adamo: A40-42, A105, A135, A146, A162-63, A235, A239; Alvarez: A252, A342, A370, A378-79). This was consistent with the practice of narcotics traffickers, who “very rarely” register “vehicles, phones or any other implements under their own names” (Adamo: A236). 7 Aside from the white plastic bag that Gonzalez was holding when he left his apartment on February 1, 2010, and which defendant received later that night from Gonzalez, the Task Force was not aware of what Gonzalez did with the bags he routinely carried in and out of the apartment (Adamo: A233). Generally, the officers saw Gonzalez with the bags when they reviewed footage from the video camera days after Gonzalez had carried the bags into or out of his apartment (Adamo: A233). Video footage never showed Gonzalez “going out and coming back with the same bag” (Adamo: A233). On January 28, 2010, Sergeant DiGiorgio observed Gonzalez enter an unidentified individual’s car with a bag and then exit the vehicle without the bag; the Task Force did not investigate that individual and made no arrests based on that observation (Alvarez: A307-14). -13- On February 1, 2010, Adamo, Alvarez, and other members of the Task Force, including Sergeant Keith DiGiorgio and Special Agent Kevin Conway, were conducting surveillance on Gonzalez (Adamo: A43, A135, 137-38; Alvarez: A252-53, A315-16, A325). The officers were in unmarked police cars in the vicinity of Gonzalez’s apartment building, and Alvarez was dressed in plainclothes (Adamo: A137-38; Alvarez: A243, A358). Adamo and Conway were in a car parked near the Platt Street parking garage (Adamo: A43, A135). Adamo was monitoring streaming video from the hallway camera outside Gonzalez’s apartment via a laptop computer in his car (Adamo: A43, A135). Alvarez was in another car with DiGiorgio, also watching the camera feed on his laptop computer (Alvarez: A252-53, A315-16, A325). At approximately 6:00 p.m., the officers saw a black BMW enter the Platt Street garage (Adamo: A139, A145; Alvarez: A317, A320-21). Shortly thereafter, Gonzalez exited the garage, and he entered his Gold Street apartment about five minutes later (Adamo: A143, A145, A147, A159-61, A237). At approximately 7:15 p.m., Gonzalez left the apartment carrying a white plastic bag. The bag appeared to be approximately 12 inches by 12 inches and to have “something of weight” in it (Adamo: A44, A161, A164-65, A167-68, A208-09; Alvarez: A252).8 Gonzalez left the building and walked 8 The white plastic bag, which was measured in court during the trial, was 13 inches by 11-and-a-half inches (Proceedings: A581; Defendant’s Exhibit C). On both sides of the bag was a black and purple square, measuring eight inches by nine inches, with a “Duane Reade” logo. “Duane Reade” was also written in black letters on the bottom of the bag (Proceedings: A580-81; Defendant’s Exhibit C). -14- to the Platt Street parking garage, still carrying the white plastic bag (Adamo: A44-45, A169-70, A176; Alvarez: A254-55, A323, A367). About two to three minutes after entering the garage, at approximately 7:30 p.m., Gonzalez drove out of the garage in his black BMW (Adamo: A44-45, A175-78; Alvarez: A254-55, A324, A367). Gonzalez was the only person in the car (Adamo: A153, A179). Members of the Task Force followed Gonzalez, who drove to a nightclub on 29th Street between 10th and 11th Avenues (Adamo: A45, A181, A184- 85; Alvarez: A256, A329-30). It took Gonzalez approximately 30 minutes to reach his destination (Adamo: A181). When Gonzalez got out of his car and went into the club, he was not carrying the white plastic bag (Adamo: A45-46, A184-85; Alvarez: A256, A336). Gonzalez later returned to his BMW (Adamo: A46, A185-86; Alvarez: A257, A329). He did not bring anything back to the car (Adamo: A46). As the Task Force officers followed him, Gonzalez drove uptown and, at about 9:00 p.m., double-parked his car near the southwest corner of 127th Street and Adam Clayton Powell Boulevard, a “high-crime” area (Adamo: A147, A187-89, A193-94, A204-05, A242; Alvarez: A257-58, A343, A348-50). Adamo parked his car on Adam Clayton Powell Boulevard, “mid-block” between 127th and 128th Streets (Adamo: A47, A191-92, -15- A199, A205).9 Alvarez stepped out of his vehicle and stood approximately 50 feet behind Gonzalez’s vehicle, on the corner of 127th Street and Adam Clayton Powell Boulevard (Adamo: A195; Alvarez: A258, A332, A351). Alvarez pretended that he was using his cell phone and trying to get a cab (Alvarez: A351). Gonzalez turned on his car’s hazard lights and, a few minutes later, defendant approached the passenger side of the car from the sidewalk (Adamo: A47, A188, A197, A204, A211-12; Alvarez: A258). Gonzalez lowered the passenger side window, and defendant “leaned into” the car for “a few seconds” and had a “short conversation” with Gonzalez (Alvarez: A259, A351-52). The hatchback of the BMW then popped open, and defendant walked to the back of the car where he removed from the trunk the white plastic bag that Gonzalez had carried out of his Gold Street apartment earlier that evening (Adamo: A48-49, A212; Alvarez: A259, A351-52, A360). Defendant closed the hatchback, placed the plastic bag in his jacket pocket, and walked west on 127th Street (Adamo: A47-49, A212-14; Alvarez: A250, A352, A360, A365).10 Gonzalez turned off his hazard lights and drove south on Adam Clayton Powell Boulevard, with Adamo following him in his car (Adamo: A58-59, A220). 9 Adamo initially testified that there was “maybe a block” between his car and Gonzalez’s vehicle, but he subsequently stated that their cars were approximately 30 to 40 feet apart (Adamo: A47, A191-92, A199, A205). 10 Adamo did not see where defendant put the white plastic bag after he retrieved it from Gonzalez’s vehicle (Adamo: A212-13). -16- As Alvarez and DiGiorgio followed defendant on foot, Alvarez did not have his police shield displayed (Alvarez: A358-39, A361-62). Defendant turned into an entrance leading to the first building of the St. Nicholas Houses (Alvarez: A260). Alvarez followed defendant onto that first walkway until defendant then stopped, turned around, and continued walking west on 127th Street to a second entrance to the housing project (Alvarez: A260-61). At this point, Alvarez had been following defendant for approximately two minutes, and was 20 to 25 feet behind defendant (Alvarez: A357-59). After confirming with DiGiorgio that they were going to stop defendant, Alvarez quickly walked up to defendant from behind and grabbed his hair (Alvarez: A262, A353). Defendant looked behind him and ran (Alvarez: A262, A353, A366). 11 Alvarez chased after defendant and “loudly” told him a “few times,” “Police, stop.” Instead of complying with the officer’s direction, defendant dashed into the lobby of a building in the St. Nicholas Houses (Alvarez: A262, 364, 366). Alvarez pursued defendant into the building and caught up with defendant as he was opening the door to a stairwell (Alvarez: A262, 353). Alvarez grabbed defendant by his jacket 11 On direct examination, Alvarez testified that he “walked behind” defendant, who “looked back” at Alvarez before running into one of the buildings in the St. Nicholas Houses (Alvarez: A262). On cross-examination, when Alvarez recounted his struggle with defendant while trying to arrest him inside the building, defense counsel asked, “And you took [defendant] down by grabbing his hair I believe and pulling him to the ground?” Alvarez responded, “I grabbed his hair originally as we were walking to the building. He ran to the building” (Alvarez: A353). -17- and hair, and a struggle ensued during which defendant was “moving his arms [and] trying to get away” (Alvarez: A262-63, 354). Alvarez wrapped his arms around defendant and his leg around defendant’s legs, as DiGiorgio arrived on the scene and assisted Alvarez (Alvarez: A262, 354). The three men fell to the ground, where defendant continued “fighting” with both officers and kicked Alvarez in the face (Alvarez: A262-63, 354). Alvarez and DiGiorgio repeatedly told defendant, “[P]olice, stop moving” (Alvarez: A263, A355). Alvarez asked defendant if he had just robbed someone, because Alvarez did not want defendant to know that the officers had seen him take the white plastic bag from Gonzalez’s car and suspected that the bag contained drugs. Defendant said “no,” whereupon Alvarez told him, “relax[,] we’re looking for somebody who just robbed somebody,” in the hope of convincing defendant to stop struggling (Alvarez: A263, A359). Eventually, the officers subdued defendant, and Detective Quinones, another member of the team, arrived on the scene and handcuffed defendant (Alvarez: A262- 64). Alvarez searched defendant’s jacket pocket and recovered the white plastic bag, which contained a Ziploc bag of cocaine (Alvarez: A264-65). Alvarez also recovered two cell phones from defendant’s person and a third cell phone from the stairwell where defendant had dropped it (Alvarez: A262, A264-45). -18- The Defense Case On the evening of February 1, 2010, defendant left his girlfriend’s apartment at the St. Nicholas Houses and walked east on 127th Street towards Adam Clayton Powell Boulevard (Joseph: A513, A520).12 When defendant reached the intersection of 127th Street and Adam Clayton Powell Boulevard, he saw Detective Sergio Alvarez standing on the northwest corner, dressed in blue jeans and a “hoody” (Joseph: A503- 04, A510). Defendant passed Alvarez and walked south on Adam Clayton Powell Boulevard (Joseph: A514). Meanwhile, Special Agent KEVIN CONWAY and Special Agent Frank Adamo were in a car parked on Adam Clayton Powell Boulevard (Conway: A385, A403, A488-89). Conway was a member of the Task Force investigating Siffreido Gonzalez (Conway: A385, A392, A394, A407). Earlier that night, Task Force officers had observed Gonzalez leave his apartment at Gold Street with a white plastic bag, drive his black BMW to a nightclub on West 29th Street, and then drive to Harlem and park his car on Adam Clayton Powell Boulevard at approximately 8:55 p.m. (Conway: A390-91, A402, A490). At about 9:00 p.m., defendant was walking near Gonzalez’s vehicle, which was parked 100 feet south of the intersection of 127th Street and Adam Clayton Powell 12 Defendant had previously been convicted of felony credit card fraud, and he also had two prior felony convictions for criminal possession of a controlled substance in the fourth degree (Joseph: A533, A535-36). -19- Boulevard (Conway: A490, A492-93; Joseph: A504, A514, A518). Gonzalez was not double-parked, but rather, was parked “next to the curb” (Conway: A390-91, A402, A489; Joseph: A514). Defendant claimed that he was walking south on Adam Clayton Powell Boulevard towards 126th Street, and was approximately three to four feet away from Gonzalez’s black BMW when he decided to turn around and walk back to his girlfriend’s apartment on 127th Street (Joseph: A504, A513-14, A519-20). Conway, by contrast, testified that defendant approached Gonzalez’s BMW and removed a “small package” from the trunk of the car (Conway: A389, A491). As defendant walked north on Adam Clayton Powell Boulevard, he saw Alvarez still standing at the northwest corner of the boulevard and 127th Street (Joseph: A504, A519-22). Defendant crossed the street and turned left, walking westbound on the north side of 127th Street (Joseph: A503, A505, A520-21). When defendant walked past the first building of the St. Nicholas Houses, he noticed that Alvarez was following him because he saw Alvarez “dart” into and then out of the first building (Joseph: A505-07, A522-23). Defendant continued to walk to the second building in the housing project, where his girlfriend lived (Joseph: A507). He became “concerned” when he saw that Alvarez was now “a close distance behind” him (Joseph: A507-08, A529-30). The neighborhood was a high-crime area and Alvarez was wearing the kind of clothes usually worn by “gang members,” namely, -20- “[b]aggy jeans, hooded sweatshirts, boots or sneakers” (Joseph: A510, A530).13 Defendant was also “wary” because he had never before seen a “light-skinned Spanish person” like Alvarez in that area (Joseph: A530-31). When defendant arrived at his girlfriend’s building, he heard footsteps “advancing rapidly” behind him and, at the same time, saw someone walking into the building (Joseph: A508). Defendant did not have a key to the front door, and was only 10 feet from the building’s entrance, so he ran to catch the door while it was still open (Joseph: A508-09, A523, A525). When defendant entered the lobby, Alvarez was “running” behind him (Joseph: A509). Defendant was “startled” and thought he was “about to be mugged,” so he ran to the building’s stairwell and started to run up the stairs, but was “tackled” from behind by Alvarez, who pulled defendant down by his long dreadlocks (Joseph: A509-11, A526). Sergeant DiGiorgio then joined Alvarez in “subduing” defendant (Joseph: A511, A527). Neither Alvarez nor DiGiorgio identified themselves as police officers while chasing and trying to apprehend defendant (Joseph: A511, A526-27). Alvarez and DiGiorgio handcuffed defendant, searched his coat and pants pockets, and found two Duane Reade bags, a Ziploc bag, and cocaine (Conway: A389, A410; Joseph: A511; Proceedings: A584). Defendant did not consent to the search 13 Defendant acknowledged that he himself had been wearing baggy jeans and a parka that day (Joseph: A531). -21- (Joseph: A511-12, A527). The officers then identified themselves, told defendant that he fit the description of a robbery suspect, and asked him whether he had robbed anyone in the area (Joseph: A511, A528).14 The Suppression Arguments Following the hearing, defense counsel presented oral and written arguments in support of suppressing the cocaine recovered from him (A538-61, A587-600). At the outset, counsel argued that Adamo’s testimony was “clearly incredible,” and had been contradicted by Alvarez and “by every document” in evidence (A538-39, A549, A588, A623-24). Similarly, counsel asserted that Alvarez was “untruthful” and had attempted to “tailor[ ]” his testimony to be consistent with Adamo’s account (A559, A588, A622-23). Next, counsel argued that the officers did not have probable cause to arrest defendant. Starting with Gonzalez, counsel claimed that there was no evidence that Gonzalez had ever sold narcotics outside his Gold Street apartment. Specifically, counsel alleged that the Darden report indicated that narcotics activity had occurred only inside the apartment, and that there was no proof that Gonzalez had used his 14 The defense also called JAMES PANZITTA, an investigative technology specialist with the DEA, to testify about the surveillance footage from the video camera that had been installed in the hallway outside Gonzalez’s apartment, and which had been accidentally destroyed (Panzitta: A432-86). Panzitta’s testimony is not summarized in this brief, except as briefly noted on pp. 12 n.6, supra, because defendant raises no issues relating to it on appeal, except for stating that Panzitta testified that the camera had been installed in December 2009 (see Defendant’s Brief at 14 n.8). -22- BMW to transport drugs (A544, A546, A589-90, A621-22, A625). Counsel also asserted that the bags Gonzalez had been seen carrying out of his apartment could have contained items such as laundry and groceries, and thus were not suspicious (A556, A588, A621-22, A624). In addition, counsel claimed that the confidential informant had not established any link between Gonzalez and defendant (A596). Turning to the night of defendant’s arrest, counsel argued that the transaction between defendant and Gonzalez had not taken place in a drug-prone neighborhood, and that the officers had not seen any glassine envelopes, the transfer of money, or other “telltale” signs of drug trafficking (A557, A560, A591-92, A596, A626). Instead, the officers had seen only a “generic” plastic bag, which could have contained innocuous items such as groceries, personal belongings, or items purchased at a store (A557, A589, A594-95, A622). Finally, counsel argued that defendant’s flight from Alvarez after the transaction did not indicate his consciousness of guilt (A560-61, A627). Instead, according to counsel, defendant had “every right to run” because he was in a high- crime area and believed that he was going to be mugged by Alvarez (A560-61, A627). In response, the People presented oral and written arguments asserting that the officers had probable cause to arrest defendant or, in the alternative, reasonable suspicion that ripened into probable cause when defendant fled from and fought with Alvarez (A565-78, A602-14). At the outset, the People urged that Alvarez and Adamo testified credibly and were officers with extensive experience in conducting -23- narcotics-related surveillance and long-term investigations (A565, A608). The People argued that any inconsistencies in the officers’ accounts were minor, and demonstrated that the officers had testified honestly and had not tailored their testimonies to conform to each other’s accounts (A565, A572-73). By contrast, the People asserted, defendant, who was a convicted criminal, offered testimony that was incredible and “tailored” to “contradict[]” the accounts provided by the police officers (A573-74). Regarding Gonzalez, the People reminded the court that a “credible” informant had informed the police that Gonzalez was a “narcotics dealer” who operated out of his apartment at Gold Street. Additionally, the police themselves had concluded, after conducting surveillance of Gonzalez, that his behavior was “consistent with that of someone who sells drugs” (A567, A608-09, A612). Turning to defendant’s arrest, the People asserted that the concealed nature of Gonzalez’s transaction with defendant provided the officers with probable cause that a drug sale had taken place. Specifically, Gonzalez had carried a white plastic bag from his apartment and drove more than 100 blocks to a darkened street, where he had a brief conversation with defendant, who then removed the bag from the trunk of Gonzalez’s car and walked away with it. The People argued that Gonzalez’s conduct was typical of narcotics traffickers, who often meet their customers in remote locations because they do not want their customers to know where they live (A568, A609). Moreover, the encounter was clearly set up to “minimize” Gonzalez’s contact -24- with defendant and to limit the two men’s detection by law enforcement (A568, A609). Accordingly, the People argued, the officers had reason to believe that they had witnessed a narcotics transaction (A568). The People conceded that the officers had not observed “telltale signs” of a narcotics transaction, such as distinctive drug packaging or the transfer of money, which could provide probable cause for arrest in the “typical” street narcotics sale (A567, A612). The People noted, however, that the Court of Appeals had expressly rejected the requirement of such “telltale signs” in narcotics cases (A612). The People also asserted that the instant case was “far different” from a traditional observation sale, because probable cause was rooted in the long-term investigation of Gonzalez, a known narcotics trafficker, and was not derived from the “characteristics of the neighborhood or [the] general habits of drug dealers” (A567, A612). Finally, the People argued that even if the Task Force did not have probable cause to arrest defendant, they had, at the very least, reasonable suspicion that a crime had occurred when defendant removed the white plastic bag from the trunk of Gonzalez’s car. Moreover, that reasonable suspicion ripened into probable cause when defendant fled from and fought with the police (A577-78, A611). The Hearing Court’s Decision By a written decision dated November 10, 2011, Justice Stolz denied defendant’s motion to suppress the approximately 350 grams of cocaine seized from -25- him. At the outset, the court stated that it had read the minutes of the Darden hearing and adopted Justice Allen’s findings “in their entirety” (Decision: A631). Justice Stolz noted that Justice Allen found that the confidential informant was “credible” and “had provided information to Detective Sergio Alvarez which gave reasonable cause to believe” that Siffreido Gonzalez was involved with “drug activity” being carried out at the apartment on Gold Street in Manhattan (Decision: A631). In addition, Justice Stolz made a sealed copy of the transcript of the Darden hearing a part of the record (Decision: A631). A. Findings of Fact Turning to the evidence adduced at the suppression hearing, Justice Stolz found the accounts of Detective Alvarez and Special Agents Adamo and Conway to be credible and made findings of fact that tracked the three witnesses’ testimony (Decision: A632-34). The court did not credit defendant’s testimony to the extent that it was inconsistent with that of Alvarez, Adamo, and Conway (Decision: A632). Specifically, the court found that during the winter of 2009 to 2010, the DEA- led New York Drug Enforcement Task Force investigated the activities of Siffreido Gonzalez. The investigation was prompted by the Task Force’s receipt of “reliable” information from a confidential informant that Gonzalez was a “narcotics trafficker, who was selling narcotics out of [his apartment at] Gold Street in lower Manhattan” (Decision: A632). Pursuant to that information, the Task Force conducted -26- surveillance of Gonzalez and the entrance to his apartment. The surveillance consisted of physical surveillance as well as the monitoring of a hidden camera that was installed in the hallway outside the apartment (Decision: A632). Through this surveillance, the agents learned that Gonzalez drove a black BMW X6, which he parked in a nearby garage. The agents also observed Gonzalez engage in activities that, in their experience, “were typical of narcotics traffickers: he maintained an erratic schedule, coming and going at odd hours; he routinely entered and exited the apartment after a short time with packages; and his hours of activity were not consistent with any form of employment” (Decision: A633). The court found that, on February 1, 2010, at approximately 7:15 p.m., members of the Task Force observed Gonzalez leave his apartment carrying a white plastic bag in his hand (Decision: A633). The bag appeared to have “some weight” (Decision: A633). Gonzalez walked to the nearby garage and then drove out in his BMW. Task Force members followed Gonzalez to 29th Street, where Gonzalez went into a club without the white plastic bag (Decision: A633). Gonzalez then left the club, drove uptown, and parked his car in the vicinity of 127th Street and Adam Clayton Powell Boulevard at approximately 9:00 p.m. (Decision: A633). A few minutes later, the court found, defendant approached Gonzalez’s car (Decision: A633-34). Gonzalez lowered the passenger side window, and defendant leaned into the car and had a brief conversation with Gonzalez (Decision: A634). The BMW’s hatchback then opened and defendant went to the back of the car, removed a -27- white plastic bag from the car trunk, placed the bag in his jacket pocket, and walked west on 127th Street (Decision: A634). Detective Alvarez followed defendant onto the grounds of the St. Nicholas Houses (Decision: A634). Within the housing project, defendant walked toward the entrance to one of the buildings, but then turned around and headed to the entrance to a second building (Decision: A634). After receiving approval from his supervisor, Sergeant DiGiorgio, Alvarez approached defendant to stop him (Decision: A634). However, defendant looked back at Alvarez and ran. The court found that Alvarez “identified himself as a police officer by loudly telling the defendant more than once, ‘Police, stop’” (Decision: A634). Instead of complying with the officer’s direction, defendant ran into the lobby of a building and attempted to evade Alvarez by running up the stairs (Decision: A634). Alvarez caught up to defendant at the stairwell, where he grabbed defendant by his jacket and braids (Decision: A634). The two men struggled, and defendant kicked Alvarez in the face (Decision: A634). Ultimately, Alvarez and DiGiorgio were able to subdue defendant, and Detective Quinones handcuffed him (Decision: A634). Alvarez then recovered a white plastic bag containing cocaine from defendant’s jacket pocket (Decision: A634). The court credited Alvarez’s testimony that he recognized this bag to be the same white plastic bag that defendant had removed from Gonzalez’s BMW, and that Gonzalez had carried from his apartment earlier that evening (Decision: A634). -28- B. Conclusions of Law In denying defendant’s motion to suppress, the court initially held that, as Justice Allen had concluded in his Darden decision, “the police had reasonable cause to believe that Siffreido Gonzalez was involved in the sale of narcotics” (Decision: A635) (citation omitted). Not only had a reliable confidential informant told the police that Gonzalez was conducting drug activity inside his apartment at Gold Street, but during their own surveillance of Gonzalez from September 2009 to the end of January 2010, the officers themselves observed Gonzalez engage in conduct that, in their experience, was consistent with that of a narcotics trafficker (Decision: A635). Armed with reliable information that Gonzalez was conducting a narcotics operation out of his Gold Street apartment, on February 1, 2010, the police observed Gonzalez carry a white plastic bag from his apartment to his car and drive to another location. There, defendant approached the car, had a brief conversation with Gonzalez, removed the white plastic bag from the trunk of Gonzalez’s car, and placed the bag in his jacket pocket. The court concluded that, based on the officers’ training and experience, as well as their knowledge that Gonzalez was involved in narcotics activity, these observations “entitled the police to conclude that they had witnessed a drug transaction, and provided probable cause for the defendant’s arrest” (Decision: A635). The court noted that the “passing of a ‘telltale sign’ of narcotics is not an ‘indispensable prerequisite’ to a finding of probable cause” (Decision: A635-36) -29- (citation omitted). Rather, there is “probable cause to arrest” where, as here, trained and experienced narcotics officers “observe a man known to be involved in drug activity, deliver a bag to another person after a brief exchange” (Decision: A636) (citations omitted). In that regard, the court held, in a probable cause analysis, “the emphasis should not be narrowly focused on a recognizable drug package or any other single factor,” but rather, should be based on “an evaluation of the totality of the circumstances, which takes into account the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents” (Decision: A636) (citation omitted). Because the police had probable cause to arrest defendant after witnessing the transaction, the court held that the police “lawfully recovered the bag from defendant’s jacket pocket as a search incident to arrest” (Decision: A636) (citation omitted). In the alternative, the court found that, based on their knowledge that Gonzalez was involved in narcotics activity and after witnessing Gonzalez’s transaction with defendant, the police “certainly had reasonable suspicion that a crime had occurred, thus warranting the pursuit and forcible stop of the defendant” (Decision: A636) (citations omitted). That reasonable suspicion, the court held, “ripened into probable cause after the defendant’s flight and subsequent struggle with the officers” (Decision: A63) (citations omitted). -30- THE PLEA AND SENTENCING PROCEEDINGS On January 24, 2012, defendant appeared with his attorney before Justice Sonberg and agreed to plead guilty to Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), in full satisfaction of the indictment, and in exchange for a promised sentence of six years in prison, followed by three years of post-release supervision (Plea: A639, A641-42, A645). Defendant affirmed that he was pleading guilty of his own volition, and that no one had forced, threatened, or induced him to plead guilty (Plea: A642-44). In response to questioning by the court, defendant affirmed that he understood the rights he was relinquishing by pleading guilty, which included his right to a trial by jury, his right to confront the witnesses against him, and his right against self- incrimination (Plea: A644). The court also advised defendant that a conviction following a guilty plea had the same legal significance as a guilty verdict after trial (Plea: A644). Defendant admitted that, on February 1, 2010, in New York County, he knowingly and unlawfully possessed cocaine with the intent to sell it (Plea: A641). Defendant also admitted that he was a second felony drug offender (Plea: A640, A645-46). On February 8, 2012, defendant appeared with his attorney for sentencing before Justice Sonberg. Defense counsel requested an adjournment because defendant was attempting to have his sentence in this case run “concurrent with a violation of supervised relief in Federal District Court,” and an adjournment would -31- allow defendant to resolve “both matters” before he began serving his sentence upstate in this case (Sentencing: A651). Justice Sonberg rejected defense counsel’s request, but agreed to stay the execution of defendant’s sentence until March 6, 2012 (Sentencing: A651, A655). The People and defense counsel both stated they were relying on the negotiated plea and sentence agreement, and defendant made a brief statement to the court (Sentencing: A651, A653). Justice Sonberg then imposed the promised sentence of six years’ imprisonment, followed by three years’ post-release supervision (Sentencing: A654-55). On March 6, 2012, defendant’s sentence was executed. THE APPELLATE DIVISION’S DECISION On October 7, 2014, the Appellate Division, First Department, unanimously affirmed defendant’s conviction. People v. Joseph, 121 A.D.3d 445 (1st Dept. 2014) (A2-4). In upholding the suppression decision, the Appellate Division initially held that the drug enforcement task officers had received “reliable” information from a confidential informant, who had testified at a Darden hearing, that the target of their investigation, Siffreido Gonzalez, “was trafficking in narcotics from his apartment,” and this information “was confirmed by behavior observed by the officers during several months of surveillance.” Id. (A2-3). The Appellate Division opined that these police observations “established, circumstantially, that [Gonzalez’s] drug activity was ongoing, and that it continued up to the time of defendant’s arrest.” Id. (A3). -32- Accordingly, the Appellate Division held, “there was sufficient evidence that the informant’s information had not become stale,” and the Appellate Division “reject[ed] defendant’s arguments to the contrary.” Id. (A3). Next, the Appellate Division held that the Task Force had probable cause to arrest defendant. The Appellate Division noted that, on the night of the arrest, the officers had seen Gonzalez “take a white plastic bag of ‘some weight’ from his apartment and drive a lengthy distance to a high crime area, where defendant approached the car, engaged in a very brief conversation with [Gonzalez], and then removed the white bag from the rear of the car.” Id. (A3). The Appellate Division found that, “[b]ased on their experience and training as well as their knowledge that [Gonzalez] was involved in narcotics trafficking, the officers reasonably concluded that defendant had received illegal drugs from [Gonzalez].” Id. (A3). The Appellate Division added, “[a]lthough, if viewed in isolation, the generic bag could have been innocuous, it clearly indicated the presence of a drug transaction when viewed in context.” Id. (A3). The Appellate Division held that the record also supported the suppression court’s alternative holding that even if the officers did not have probable cause to arrest defendant, they had reasonable suspicion that a crime had occurred “based on the totality of their information and observations,” and they were therefore “entitled to make a forcible stop.” Id. (A3-4). Moreover, “[d]efendant’s flight from the officers, after they had identified themselves, and his struggle when they tried to stop -33- him, elevated the officers’ suspicions and provided probable cause regardless of whether it already existed.” Id. (A4).15 SUMMARY OF ARGUMENT Defendant contends that the courts below erred in concluding that experienced drug enforcement Task Force officers had probable cause to arrest defendant, or alternatively, reasonable suspicion that he had committed a crime when they observed defendant approach the car of a man they had reason to believe was a narcotics trafficker, engage in a very brief conversation with the man, and then covertly remove a white plastic bag from the trunk of the man’s car. Defendant additionally contends that even if his actions furnished reasonable suspicion, the lower courts erred in finding that his subsequent flight from and violent struggle with Task Force officers elevated the officers’ suspicion to probable cause. At the outset, the hearing court denied defendant’s suppression motion based on sound credibility and factual determinations that it drew from the evidence adduced at the suppression hearing. Defendant’s current complaints about the 15 The Appellate Division also held that defendant’s procedural arguments did not warrant a remand for further suppression proceedings. Id. (A4). In particular, the Appellate Division found that “[t]he report issued by the Darden court and the scope of cross- examination at the suppression hearing were both adequate to protect defendant’s rights under the circumstances of the case, given, among other things, the risk of disclosure of the informant’s identity.” Id. (A4). The Appellate Division noted that “[t]he particular point in time when the informant ceased providing information about [Gonzalez’s] drug activity was not necessary to a determination of the suppression hearing” because “police observations established circumstantially that the information was not stale.” Id. (A4). -34- hearing court’s decision, which was unanimously affirmed by the Appellate Division, amounts to nothing more than a dispute with both courts’ application of settled law to the factual findings made in this case. Accordingly, the determinations of both courts are beyond this Court’s further review. In any event, the record supports both courts’ determinations that the Task Force officers had probable cause to conclude that defendant had received narcotics from Gonzalez during the transaction in question. At the outset, the officers had reason to believe that Gonzalez was a narcotics trafficker. As the lower courts had found, a credible confidential informant provided reliable information to the police that Gonzalez was trafficking in narcotics from his apartment on Gold Street. In addition, police observations of Gonzalez over the course of several months established, circumstantially, that Gonzalez was a narcotics trafficker and that his drug activities were ongoing and continued up to the time of defendant’s arrest. With substantiated information that Gonzalez was a narcotics trafficker, the Task Force clearly had probable cause to believe that defendant engaged in a narcotics transaction with Gonzalez on February 1, 2010. On that day, Task Force officers observed Gonzalez carry a white plastic bag from his apartment and drive more than 100 blocks to a high-crime area in Harlem, where defendant approached Gonzalez’s car, spoke briefly to Gonzalez, and then promptly and secretively removed the same white plastic bag from the car trunk and immediately walked away with it. As the lower courts properly concluded, based on the Task Force officers’ training and -35- experience, these observations entitled the police to conclude that defendant had surreptitiously received narcotics from Gonzalez. Alternatively, as the lower courts rightly found, even if the Task Force officers did not have probable cause to arrest defendant, they certainly had reasonable suspicion that a crime had occurred, thus warranting a forcible stop of defendant. Furthermore, as the lower courts correctly held, defendant’s flight from and subsequent struggle with Task Force members Alvarez and DiGiorgio, even though they identified himself as police officers numerous times, elevated the officers’ suspicion and gave them probable cause to arrest defendant. POINT DEFENDANT’S SUPPRESSION CLAIM PRESENTS A MIXED QUESTION OF LAW AND FACT THAT IS UNREVIEWABLE BY THIS COURT. IN ANY EVENT, THE RECOVERY OF THE BAG OF COCAINE FROM DEFENDANT WAS ENTIRELY LAWFUL (Answering Defendant’s Brief, Argument, pp. 31-53). As both the suppression court and the Appellate Division found, the evidence at the suppression hearing established that Detective Sergio Alvarez and Special Agents Frank Adamo and Kevin Conway, members of the New York Drug Enforcement Task Force, had reasonable cause to believe that Siffreido Gonzalez was a narcotics trafficker who made a lot of money selling large quantities of cocaine. Not only had the Task Force received reliable information from a registered confidential -36- informant that Gonzalez was carrying out a substantial narcotics operation from his apartment at Gold Street in Manhattan, but in conducting their own surveillance of Gonzalez from September 2009 to January 2010, the narcotics officers observed him engage in conduct that, based on their training and expertise, was entirely consistent with that of a narcotics trafficker. Specifically, Gonzalez maintained a very erratic schedule in which he would arrive at and leave his apartment at odd times, he would come home for short periods of time and then leave, and his hours of activity were not consistent with having any form of regular employment. Moreover, when entering and leaving the apartment, Gonzalez would routinely carry different types of plastic and paper bags that did not appear to contain items such as food or laundry. Notably, too, Gonzalez had registered both his apartment and his BMW under other peoples’ names -- a practice commonly used by narcotics traffickers to avoid detection by law enforcement. Taking into consideration their well-founded belief that Gonzalez was trafficking in narcotics from his Gold Street apartment, on February 1, 2010, when Task Force members observed Gonzalez carry a plastic bag from his apartment and transport it in his BMW which he drove a lengthy distance to a street corner in Harlem, where they saw defendant approach Gonzalez’s car, speak briefly to Gonzalez, and then remove the same plastic bag from the car trunk and immediately walk away with it, the police had a reasonable basis to conclude that they had witnessed a drug transaction with defendant’s receipt of narcotics. Accordingly, as -37- both lower courts correctly held, the police had probable cause to arrest defendant and to recover the bag containing 350 grams of cocaine from his jacket pocket during a search incident to his arrest. Alternatively, as both courts also properly found, the police had, at a minimum, reasonable suspicion to believe that a crime had been committed when defendant removed the plastic bag from Gonzalez’s car trunk, thereby justifying a forcible stop of defendant. That reasonable suspicion ripened into probable cause when defendant fled from and violently struggled with Task Force officers, even though they had repeatedly identified themselves as police officers. Before this Court, defendant once again argues that the Task Force had neither probable cause nor reasonable suspicion that a crime had been committed when he removed the plastic bag from Gonzalez’s car. In addition, defendant renews his contention that, even if the officers had reasonable suspicion to believe that he had committed a crime, the courts below erred in finding that that suspicion ripened into probable cause to arrest defendant after he actively fled from and aggressively fought with Alvarez and another Task Force officer in order to evade apprehension. Accordingly, defendant argues, the subsequent recovery of the plastic bag containing 350 grams of cocaine from his jacket pocket was erroneously upheld as a search incident to a lawful arrest (Defendant’s Brief at 31). As a threshold matter, defendant’s suppression claim is unreviewable by this Court because it clearly presents a mixed question of law and fact. Tellingly, defendant, who does not address this unavoidable issue in his brief, makes no attempt -38- to contend otherwise. His silence on this issue is not surprising. Indeed, defendant does not argue that either the suppression court or the Appellate Division applied the incorrect legal principles to the case at hand; rather, his attack on the suppression decision that was rendered by the hearing court and unanimously affirmed by the Appellate Division rests solely on his disagreement with those courts’ factual and credibility findings and the inferences they drew from those findings of facts. However, there is no question that this Court may reverse the lower courts’ rejection of defendant’s suppression claims only if there is absolutely no support in the record for the factual findings and reasonableness determinations made by the Supreme Court and the Appellate Division. Since the evidence adduced at the suppression hearing provides more than an ample basis for the suppression decision rendered by the Supreme Court and unanimously upheld by the Appellate Division, their determinations are beyond this Court’s further review. In any event, even if reviewable by this Court, it is clear that the lower courts’ determinations were entirely correct and should be affirmed by this Court. As the courts below found, the Task Force had probable cause that defendant committed a crime when he when he removed the plastic bag from the car trunk of a known narcotics trafficker in a manner and under circumstances that bore all the indicia of a drug transaction. At the very least, defendant’s actions provided the officers with reasonable suspicion which ripened into probable cause when he subsequently fled from and fought with the officers. -39- A. Defendant’s Suppression Claim Presents an Unreviewable Mixed Question of Law and Fact Since it Rests on Nothing More than a Challenge to the Factual and Credibility Determinations, and the Reasonable Inferences Drawn Therefrom, Made by the Lower Courts. At the outset, significantly, defendant does not claim or suggest that any reviewable question of law is presented for this Court’s consideration in this appeal. In that regard, defendant does not contend that the courts below incorrectly applied this Court’s precedents or other legal principles in concluding that experienced Task Force narcotics officers had probable cause, or at least reasonable suspicion, to believe that defendant had engaged in a drug transaction with Gonzalez on February 1, 2010. Rather, defendant’s disagreement with the suppression decision rendered by the hearing court and unanimously affirmed by the Appellate Division is based almost exclusively on his view that both courts erred in the factual, credibility and reasonableness determinations that they made based on the evidence in this case. To be sure, however, “where the facts are disputed, where credibility is at issue or whether reasonable minds may differ as to the inference to be drawn from the established facts, this [C]ourt, absent an error of law, will not disturb the findings of the Appellate Division or the suppression court.” People v. McRay, 51 N.Y.2d 594, 601 (1980). Here, the Appellate Division’s determination that the Task Force officers had probable cause to arrest defendant, or reasonable suspicion that he had committed a crime which was elevated to probable cause after he fled from and fought with officers, was based on the facts, inferences, and credibility assessments -40- drawn from the hearing testimony by the suppression court and upheld by the Appellate Division. Since the Appellate Division’s determination presents a mixed question of law and fact for which there is solid support in the record, it is beyond further review by this Court. In determining that the Task Force had lawfully apprehended defendant, each lower court weighed and analyzed the testimonies of the confidential informant and the officers, credited those testimonies, drew reasonable inferences from them, and made findings of fact consistent with the accounts given by the People’s witnesses. For instance, the hearing court took into consideration that Alvarez had been a detective with the NYPD for 24 years and a member of the Drug Enforcement Task Force for six years, that Adamo had 13 years of experience with the DEA, that both officers had received training in how narcotics are sold and packaged, and that both officers had made numerous narcotics arrests (Decision: A632). The hearing court found Adamo and Alvarez to be credible witnesses, and did not credit defendant’s testimony to the extent that it was inconsistent with that of the officers (Decision: A631-32). In addition, each lower court found that the confidential informant had provided reliable information that Gonzalez was trafficking in narcotics from his Gold Street apartment. Joseph, 121 A.D.3d 445-46 (A2); Decision: A635. Moreover, as both courts found, the testimony of the officers had also established, circumstantially, that Gonzalez’s drug activity was ongoing and continued up to the -41- time of defendant’s arrest. Joseph, 121 A.D.3d at 446 (A2-3); Decision: A635. Turning to the night of defendant’s arrest, both courts found that, “[b]ased on their training and experience,” as well as their “knowledge” that Gonzalez was involved in narcotics activity, the officers “reasonably concluded” that defendant had received illegal drugs from Gonzalez when they saw Gonzalez take a white plastic bag of “some weight” from his apartment and drive a lengthy distance to a high-crime area, where defendant approached the car, engaged in a very brief conversation with Gonzalez, and then removed the plastic bag from the car trunk. Joseph, 121 A.D.3d at 446 (A3); Decision: A635. In particular, as the Appellate Division noted, the plastic bag that defendant retrieved from the trunk of Gonzalez’s vehicle “clearly indicated the presence of a drug transaction when viewed in context,” and the police therefore had probable cause to arrest defendant. Joseph, 121 A.D.3d at 446 (A3). At the very least, as the Appellate Division stated, the officers had reasonable suspicion that a crime had occurred “based on the totality of their information and observations,” and that reasonable suspicion ripened into probable cause upon defendant’s flight from the officers after they had identified themselves, and his struggle with them when they tried to stop him. Joseph, 121 A.D.3d at 446 (A3-4); Decision: A636-37. In criminal cases, this Court has jurisdiction to review only questions of law. See N.Y. Const. Art VI § 3; CPL § 470.35. It lacks power to review a mixed question of law and fact, which requires the weighing of the nature and quality of the particular circumstances at hand, such as the officers’ knowledge, training and experience; -42- whether and what verbal commands were given; the content and tone of any such verbal commands; and where that encounter took place. See People v. Bora, 83 N.Y.2d 531, 535 (1994); People v. Chestnut, 51 N.Y.2d 14, 22 (1980). The ability to decide a mixed question of law and fact is reserved for lower courts, which are able to make credibility determinations and findings of fact from competing inferences. People v. Harrison, 57 N.Y.2d 470, 477 (1982); People v. McRay, 51 N.Y.2d at 601. A mixed question of law and fact is beyond the review power of this Court unless it can be said as a matter of law that the inferences drawn by the lower courts were unreasonable and without any basis in the record. See People v. Francois, 14 N.Y.3d 732 (2010); Harrison, 57 N.Y.2d at 477. Cases which turn on the reasonableness of police conduct during street encounters almost always present unreviewable mixed questions of law and fact. See People v. McIntosh, 96 N.Y.2d 521, 524 (2001) (“whether police conduct in any particular case conforms to De Bour is a mixed question of law and fact”); People v. Greenidge, 91 N.Y.2d 967, 969 (1988) (“determinations relating to the seizure of [a] defendant . . . involve mixed questions of law and fact”); People v. Campbell, 87 N.Y.2d 855, 857 (1995) (“The determination of probable cause made by the Appellate Division involves a mixed question of law and fact”); People v. Bianchi, 85 N.Y.2d 1022, 1022 (1995) (“The issue of whether the police had reasonable suspicion to stop defendant is a mixed question of law and fact”). -43- Defendant’s case is no exception. Here, defendant does not claim that the lower courts made an error of law in denying his suppression claim. Compare People v. Vandover, 20 N.Y.3d 235, 239 (2012) (People argued that the Appellate Term applied an “incorrect standard of proof for determining probable cause”). Rather, defendant disputes only the lower courts’ determinations of the facts presented to the officers, and the inferences drawn from those facts, thus precluding review of his claim by this Court. See People v. Howard, 22 N.Y.3d 388, 403 (2013) (The rule precluding review of mixed questions of law and fact “applies where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference drawn”) (quotations and citations omitted). For instance, defendant disputes the conclusion reached by the officers that Gonzalez’s conduct and lifestyle were consistent with those of a narcotics trafficker, claiming that Gonzalez’s activities “were also consistent with other residents of lower Manhattan,” such as “students and underemployed actors” or “former Wall Street employees [who] might have fallen out of a regular schedule” after “the financial collapse of 2008” (Defendant’s Brief at 42-43). Defendant’s alternative explanations for Gonzalez’s conduct are not only unsupported by the hearing evidence, but they present, at most, a mixed question of law and fact that is beyond the review power of this Court, unless it can be said as a matter of law that the conclusions reached by the officers, and upheld by the suppression court and the Appellate Division, were unreasonable and without any basis in the record. Defendant makes no such claim, -44- nor could he do successfully. As discussed, both lower courts reasonably credited the Task Force officers’ determinations -- made on the basis of the officers’ extensive narcotics training and expertise, their observations in this case, and the reliable information they received from a confidential informant – that Gonzalez was a narcotics trafficker. See Joseph, 121 A.D.3d at 446 (A2); Decision: A635. Additionally, defendant claims that he fled from Alvarez because he did not know that Alvarez was a police office and believed that he was about to be mugged by Alvarez (Defendant’s Brief at 50-52). But, defendant’s claim in that regard was rejected by both courts, which discredited his account and credited Alvarez’s testimony that he had identified himself as a police officer “more than once” while attempting to apprehend defendant. Joseph, 121 A.D.3d at 446 (A2-4); Decision: A634-35. Thus, defendant’s argument is predicated on factual findings that are completely contrary to the determinations arrived at by the lower courts -- determinations that have more than ample support in the record below. Of course, as this Court has stated, the “reasonableness of conduct can rarely be resolved as a matter of law even when the facts are not in dispute.” People v. Harrison, 57 N.Y.2d at 478. Here, where each lower court’s decision hinged on a finding -- based on the facts, inferences, and credibility assessments drawn from the hearing evidence -- that the officers acted reasonably in apprehending defendant, there is simply nothing unique about this case to indicate that it embodies the “rare[]” exception to the Harrison rule. See, e.g., People v. Jones, 90 N.Y.2d 835 (1997) -45- (officer’s observation of street transaction provided probable cause to arrest the defendant and that determination -- which was based on, inter alia, the officer’s training in the “investigation and detection of narcotics” and the circumstances of the transaction -- was “beyond this Court’s further review”); see also People v. Martin, 19 N.Y.3d 914 (2012); People v. Pines, 99 N.Y.2d 525, 527 (2002). To that end, it is telling that defendant does not at all dispute that his suppression claim presents a mixed question of law and fact. Finally, it bears noting that even if different inferences may have been drawn from the testimony and evidence adduced at the suppression hearing, this Court is nonetheless “faced with affirmed findings of fact precluding further review.” Vandover, 20 N.Y.3d at 239. In any event, as set forth more fully below, defendant’s suppression claim fails on the merits. B. The Task Force had Probable Cause to Believe that Defendant had Committed a Crime when he Removed the Plastic Bag from the Trunk of a Known Narcotics Trafficker’s Car. In the Alternative, Defendant’s Actions Provided the Task Force with Reasonable Suspicion which Ripened into Probable Cause upon Defendant’s Flight from and Violent Struggle with the Police. Even if this Court were to determine that it may reach the merits of defendant’s suppression claim, it would fail because the evidence makes plain that Task Force was justified in arresting defendant and recovering the bag of cocaine from his person. As the courts below correctly held, based on the totality of the Task Force officers’ information and observations, in conjunction with their training and -46- expertise, the officers had probable cause to believe that defendant had received illegal drugs when they observed him remove a white plastic bag from the trunk of a car driven by Gonzalez, whom they had reason to believe was involved in narcotics trafficking. In the alternative, as both courts found, Gonzalez and defendant’s actions provided the officers with reasonable suspicion that defendant had committed a crime, justifying their forcible stop of him. And, as the courts properly held, that reasonable suspicion ripened into probable cause when defendant fled from and violently struggled with the police. Accordingly, as both courts correctly determined, the cocaine was properly recovered from defendant in a search incident to his lawful arrest. The applicable legal principles are not in dispute in this case. Reasonableness is the touchstone of any analysis of police conduct during an encounter with a citizen. People v. Batista, 88 N.Y.2d 650, 653 (1996). In People v. DeBour, 40 N.Y.2d 210 (1976), the Court of Appeals set out a four-level analytical framework for examining police-citizen encounters. The most basic interaction is when, based on an “objective, credible” ground “not necessarily indicative of criminality,” the police “request information,” such as a person’s identity and destination. Id. at 223. Thereafter, when the police have a “founded suspicion that criminal activity is afoot,” they have a “common-law right of inquiry” to ask more pointed questions and to make limited intrusions “to the extent necessary to gain explanatory information.” Id. At the third level of intrusion, “where a police officer has reasonable suspicion that a particular -47- person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person.” People v. Hollman, 79 N.Y.2d 181, 185 (1992); DeBour, 40 N.Y.2d at 223. Finally, it is well-settled that a police officer may arrest a person, and conduct a search incident to that arrest, when he has probable cause to believe that the suspect has committed a crime. See CPL 140.10(1); People v. Johnson, 66 N.Y.2d 398, 402 (1985); McRay, 51 N.Y.2d at 602; DeBour, 40 N.Y.2d at 223. Probable cause does not require “proof to a mathematical certainty, or proof beyond a reasonable doubt.” People v. Mercado, 68 N.Y.2d 874, 877 (1986); People v. Miner, 42 N.Y.2d 937, 938 (1977) (“The evidence needed to establish probable cause to justify an arrest does not have to be such as to warrant a conviction”); see also Draper v. United States, 358 U.S. 307, 312 (1959) (probable cause to arrest and sufficient evidence to convict require different “quanta and modes of proof”). Indeed, “the inquiry is not as to defendant’s guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer’s belief that the defendant was guilty.” People v. Shulman, 6 N.Y.3d 1, 25-26 (2005) (citations omitted). Thus, probable cause exists when, from the standpoint of a reasonable person who has the same training and experience as the arresting officer, it appears more probable than not that the suspect committed the offense. People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981); McCray, 51 N.Y.2d at 602 (noting that probable cause requires “merely information which would lead a reasonable person who possesses the same expertise -48- as the officer to conclude, under the circumstances, that a crime is being or was committed”) (quotations and citations omitted). In the particular context of narcotics transactions, it is not mandatory that a police officer observe a “telltale” sign of narcotics to have probable cause to believe that a drug crime has occurred, as long as other indicia of a drug transaction are present. See People v. Jones, 90 N.Y.2d 835, 837 (1997). Indeed, in a probable cause analysis, the emphasis “should not be narrowly focused on a recognizable drug package or any other single factor,” but rather, should be based on “an evaluation of the totality of the circumstances,” which takes into account “the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents.” Graham, 211 A.D.2d at 58-59. In that regard, the presence of a known drug seller or purchaser in an apparent narcotics transaction can be a substantial factor in establishing probable cause. See, e.g., People v. Selby, 82 A.D.3d 433, 433- 34 (1st Dept. 2011) (probable cause to arrest where a “trained and experienced narcotics officer” saw the defendant “converse briefly with a man known to . . . be a local seller of heroin and cocaine” and receive an unidentified object from the dealer in exchange for money); People v. Powell, 32 A.D.3d 544, 545-56 (2d Dept. 2006) (probable cause to arrest where an “experienced police officer” saw defendant engage in a “hand-to-hand transaction” with a “known drug suspect at a location known for narcotics trafficking,” and where both men attempted to flee when the police officers approached them); People v. Eldridge, 173 A.D.2d 975 (3d Dept. 1991) (probable -49- cause to support search warrant where defendant informed a known drug purchaser of his current location and told the purchaser to “bring scales,” and the purchaser then drove to defendant’s mother’s house and entered it carrying a dark bag); People v. Davis, 111 A.D.2d 565 (3d Dept. 1985) (police detective’s knowledge that the defendant had been “linked on numerous occasions with drug traffic[king]” was factor in establishing probable cause). 1. The Task Force Had Reliable Information that Gonzalez was a Narcotics Trafficker on the Day of Defendant’s Arrest. Evaluated by these standards, the lower courts were initially correct to conclude that, on the day of defendant’s arrest, Adamo, Alvarez, and Conway -- trained and experienced narcotics officers who had debriefed hundreds of confidential informants and had participated in over one thousand narcotics arrests combined (Adamo: A36- 38; Alvarez: A247-49) -- had reasonable cause to believe that Gonzalez was a narcotics dealer. First, as the courts properly held, the officers received “credible” and “reliable” information from a confidential informant that Gonzalez was a narcotics trafficker. Joseph, 121 A.D.3d at 445-46 (A2); Decision: A631-32. Specifically, the informant told the officers that Gonzalez had “a lot of money” and “dealt” in “large amounts of cocaine” from his Gold Street apartment (Adamo: A39- 40, Alvarez: A250, A305-06, A326, A365). Second, as the lower courts rightly found, the Task Force officers themselves determined, after conducting personal and video surveillance of Gonzalez in the -50- months leading up to defendant’s arrest, that Gonzalez engaged in activities that, in their experience and expertise, were “typical of narcotics traffickers” and “continued up to the time of defendant’s arrest.” Joseph, 121 A.D.3d at 446 (A2-3); Decision: A632-33. In particular, Gonzalez had a “very erratic” schedule that was “not consistent with any form of regular employment.” He arrived and left the apartment “at odd hours,” and would come home for short periods of time and then leave (Decision: A633; Adamo: A42). In addition, Gonzalez routinely entered and left the apartment with plastic bags that were not “general flow,” in that they did not appear to contain ordinary items such as food or clothes (Decision: A633; Adamo: A42, A232-33, A242-43; Alvarez: A251). Indeed, the white plastic bag that Gonzalez carried from his apartment and delivered to defendant on the day of defendant’s arrest was the same as, or similar to, the bags that the Task Force officers had observed Gonzalez regularly carrying to or from his apartment on previous occasions (Decision: A633; Adamo: A42, A232-33; Alvarez: A251). Significantly, too, Gonzalez registered his apartment and BMW under other people’s names -- a practice commonly used by narcotics traffickers to ensure that the “implements” they used to conduct their drug business were not “directly relatable” to them (Adamo: A236). Given these circumstances, there is simply no support for defendant’s claim, which was considered and rejected by both courts below (See Joseph, 121 A.D.3d at 445-46 [A2-3]; Decision: A635), that the record “fails to establish” that the confidential informant’s statements about Gonzalez’s narcotics activities were “not -51- stale” by the time of defendant’s arrest, on February 1, 2010 (Defendant’s Brief at 32- 33, 39-43). As a preliminary matter, the sealed Darden hearing minutes, which were made part of the record by the suppression court and which the People are providing to this Court for in camera review, demonstrate that the confidential informant’s information was not stale.16 16 Contrary to defendant’s contention, the People did not “agree[ ]” during the suppression hearing that in meeting their burden to establish probable cause for defendant’s arrest, they would be “limited” to the information contained in Justice Allen’s Darden decision and the evidence developed at the suppression hearing, and that, accordingly, “this Court may not rely on the sealed transcript of the Darden hearing to support a finding of probable cause even though that transcript was made part of the record” (Defendant’s Brief at 3 n.3, 12 n.6, 26, 35-36). At no point below were any such restrictions agreed to by the parties or the court. At the outset, defendant himself argued vigorously that the suppression court could not determine the issue of probable cause without having read the Darden hearing minutes (Proceedings: A25, A27-28, A289). Indeed, defendant requested that Justice Allen conduct the suppression hearing because he had “heard the testimony of the confidential informant,” and thus, “it would be inappropriate” for the hearing “to be before anyone else” (Proceedings: A25, A27-29). Defense counsel’s theory was that, without knowing the contents of the Darden hearing transcript, the suppression court could not properly “evaluate” whether there were any discrepancies between the testimonies of the confidential informant and the Task Force officers regarding the information the informant had provided about Gonzalez (Proceedings: A289; Defense Summation: A553-54). Undoubtedly, it is for this reason that defense counsel did not object when the People provided the suppression court with a sealed copy of the Darden hearing minutes and the court made those minutes a part of the record in this case (Proceedings: A78-79). That neither the People nor this Court are precluded from relying on the Darden hearing transcript in support of a finding of probable cause for defendant’s arrest is reinforced by the fact that Justice Stolz stated that he “read the minutes” of the Darden hearing and adopted Justice Allen’s findings “in their entirety” (Decision: A631). Certainly, Justice Stolz would not have read the Darden hearing transcript had the People and the court allegedly agreed that it was “not relevant to the resolution of the suppression issue” (Defendant’s Brief at 3 n.3, 12 n.6). Additionally, the fact that defense counsel, who was extremely litigious throughout the proceedings below, did not make any motion to contest the court’s reading of those minutes demonstrates that he, too, did not believe that the Darden hearing minutes could not be considered by the hearing court or an appellate court in deciding any claims relating to the suppression issue. -52- (Continued…) Moreover, even assuming, arguendo, that defendant is correct in claiming that “this Court may not rely on the transcript of the Darden hearing to support a finding of probable cause” (Defendant’s Brief at 39), the Darden decision itself supports the conclusion that the confidential informant’s information about Gonzalez’s narcotics trafficking was not stale by the time of defendant’s arrest. After all, in his Darden decision, Justice Allen found -- with the aid of questions submitted by defendant, such as, “When did you last see [Gonzalez]?” and “Under what circumstances?” -- that the informant’s Darden hearing testimony “gave cause to believe that drug activity was being carried out” at the Gold Street apartment and that “Gonzalez was involved” (Darden Decision: A20) (emphasis added). It is reasonable to infer that Justice Allen would not have reached this conclusion if he had reason to believe that the information provided by the confidential informant was stale, and thus not reliable, by the time defendant was arrested in this case.17 Finally, even assuming the record could be read to suggest that the People -- evidently out of concern for protecting the identity and safety of the confidential informant - - agreed to limit the extent to which they would rely on the informant's Darden hearing testimony in meeting their burden of establishing the legality of defendant's arrest at the suppression hearing (see Proceedings: A70-71, A93-94, A97, A288), there is no indication in the record, and even defendant does not contend, that there was any agreement that neither the People nor any court would be allowed to consider the informant's testimony at the Darden hearing in determining whether the informant's information to police regarding Gonzalez's trafficking of narcotics from his Gold Street apartment had become stale by the time of defendant's arrest. 17 To be sure, a Darden report is a “summary” report that confirms merely the “existence of the informer” and that “communications [were] made by the informer to the -53- ______________________ (…Continued) (Continued…) Additionally, as the Appellate Division held, Joseph, 121 A.D.3d at 446 (A2-3), because the Task Force officers’ testimony regarding their own observations established, circumstantially, that Gonzalez’s drug activity was “ongoing” and that it “continued up to the time of defendant’s arrest,” there was sufficient evidence adduced at the suppression hearing that the confidential informant’s information about Gonzalez “had not become stale” by the time of defendant’s arrest. Specifically, Adamo testified at the suppression hearing that, “[s]tarting” in September 2009 and “throughout this case as it was relevant,” information concerning Gonzalez was received from the confidential informant “on a couple of occasions” (Adamo: A83-84). Such evidence, combined with Adamo’s testimony that there were police.” People v. Darden, 34 N.Y.2d 177 (1974). The report does not typically contain any further details -- such as an informant’s knowledge of a suspect’s narcotics activities or the last time the informant interacted with the suspect -- even if that information was furnished by the informant at the Darden hearing. The absence of such details is meant to protect the informant, whose safety and family’s safety could be jeopardized if his or her identity were revealed. Therefore, it is inherently misleading to focus solely on the text of the Darden decision, as defendant does, to challenge the sufficiency of the underlying proof at that hearing. Instead, the proper procedure by which to contest a Darden determination, including the implicit finding that an informant’s information was not stale, is to have the Appellate Division and this Court conduct an in camera review of the Darden minutes. See, e.g., People v. Raosto, 110 A.D.3d 524, 526 (1st Dept. 2013) (Darden minutes established that the informant’s observations “sufficed to provide probable cause”); People v. Knight, 94 A.D.3d 1527, 1528-29 (4th Dept. 2012) (finding that informant’s basis of knowledge was “sufficiently established” at the Darden hearing); People v. Shoga, 89 A.D.3d 1225, 1230 (3d Dept. 2011) (denying defendant’s claim that the informant was “unreliable and biased against him” after a review of Darden minutes). Defendant, however, has not asked either the Appellate Division or this Court to conduct an in camera review of the Darden transcript. -54- ______________________ (…Continued) “quarterly debriefings” of the informant (Adamo: A85), and Alvarez’s testimony that, during his surveillance of Gonzalez, he had seen Gonzalez with the informant, who also confirmed Gonzalez’s identity for Alvarez (Alvarez: A251-52), left no doubt that the informant’s information that Gonzalez was conducting a narcotics operation out of his Gold Street apartment was still valid and reliable on February 1, 2010. Further undermining defendant’s staleness contention is the fact that Task Force officers independently observed numerous indicia in the months, and especially the weeks, preceding defendant’s arrest, to support a finding of probable cause to believe that Gonzalez’s narcotics dealings were ongoing -- thus, also confirming that the information that had been obtained from the confidential informant was not stale -- on the day defendant was arrested. First, it bears emphasizing that the Task Force installed the surveillance camera outside Gonzalez’s apartment in December 2009 or January 2010. Thus, the officers observed many of the indicia of narcotics activity only one to two months before defendant’s arrest, such as the fact that Gonzalez’s conduct was not consistent with any form of employment (Adamo: A42). In addition, Gonzalez registered his BMW in another person’s name 12 days before defendant’s arrest (Adamo: A105, Alvarez: A378-79). And, only four days before defendant was arrested for removing a plastic bag containing narcotics from the trunk of Gonzalez’s BMW shortly after Gonzalez had delivered it, Sergeant DiGiorgio had witnessed what appeared to be a similar, veiled narcotics transaction involving Gonzalez entering another person’s car with a bag and then leaving the car without -55- the bag (Alvarez: A307-14). Plainly, then, the totality of the circumstances amply demonstrated that the information concerning Gonzalez’s narcotics activity was not stale on the day of defendant’s arrest. See People v. Hanlon, 36 N.Y.2d 549, 557-58 (1975) (probable cause where the informant’s information gave reason to believe that the defendant’s illegal drug activity was “continuing,” and police surveillance circumstantially corroborated the informant’s tip through observations of known narcotics users at the defendant’s house); see also People v. Munoz, 205 A.D.2d 452, 452-53 (1st Dept. 1994) (evidence of “ongoing drug enterprise” not stale where police officers’ observations were made “over a five-month period, the last one only four days before the application” for a search warrant); People v. Telesco, 207 A.D.2d 920 (2d Dept. 1994) (three-week gap between the date of the last drug transaction mentioned in the warrant and the issuance of that warrant “did not render the information stale since it was clear . . . that [the] defendant’s drug-dealing activities were ongoing and continuing”). 2. The Task Force Had Probable Cause to Arrest Defendant when he Removed a Plastic Bag from the Trunk of Gonzalez’s Car. As the lower courts properly found, with the substantiated information that Gonzalez was a narcotics trafficker, the Task Force clearly had probable cause to believe that defendant engaged in a narcotics transaction with Gonzalez on February 1, 2010. On that day, Task Force officers observed Gonzalez leave his apartment with a white plastic bag that appeared to have “something of weight” in it, bring the -56- bag into his BMW, and drive to a high-crime area in Harlem, where he double-parked. A few minutes later, defendant approached the car and spoke for only a few seconds with Gonzalez, followed immediately by the BMW’s hatchback opening, and defendant retrieving the white plastic bag from the car trunk. Defendant then put the bag in his jacket pocket and promptly walked away, as Gonzalez immediately drove off. As the suppression court and the Appellate Division properly concluded, based on the Task Force officers’ training and experience, as well as their knowledge that Gonzalez was involved in narcotics activity, these observations entitled the police to reasonably conclude that defendant “had received illegal drugs from [Gonzalez],” and therefore provided probable cause for defendant’s arrest. Joseph, 121 A.D.3d at 446 (A3); Decision: A635. The lower courts’ finding that the Task Force had probable cause to arrest defendant when they saw him take the plastic bag out of Gonzalez’s car trunk was well-founded for a number of reasons. In addition to the fact that the Task Force had a solid basis to believe that Gonzalez was a narcotics dealer, the transaction in this case had all of the characteristics of a carefully-executed and deliberately concealed drug transaction. At the outset, Gonzalez drove to a street corner more than 100 blocks from his apartment to deliver a package to defendant, whom there was no indication Gonzalez knew. As the People argued, this conduct is typical of narcotics traffickers, who often meet their customers in remote locations because they do not want their customers to know where they live (A568). -57- In addition, Gonzalez and defendant clearly had prearranged the time, location, and manner by which defendant would remove the narcotics from Gonzalez’s car, in order to ensure that the two men would have minimal and fleeting contact with each other, and to make their meeting appear as innocuous as possible – all with the obvious objective of avoiding the attention of law enforcement officers. In that regard, moments after Gonzalez double-parked his car in the vicinity of 127th Street and Adam Clayton Powell Boulevard, defendant went up to the car, engaged in an extremely brief conversation with Gonzalez, and then went to the back of Gonzalez’s car where Gonzalez popped open the hatchback. Notably, although the plastic bag in question was not large or cumbersome, Gonzalez nonetheless stored the package in the trunk of his car and had defendant retrieve it from there, instead of personally handing it to defendant. Of course, this allowed defendant to quickly retrieve the package of cocaine, hide it in his pocket, and immediately leave the location, instead of the two men being caught in a more exposed and potentially more incriminating hand-to-hand transaction. A combination of factors, therefore, rendered defendant and Gonzalez’s interaction with each other consistent with an illicit drug transaction, including their haste in meeting, the brevity of their verbal exchange, and the fact that the plastic bag was removed by defendant from the trunk of the car rather than handed to him by Gonzalez. See generally, Jones, 90 N.Y.2d at 837 (probable cause to arrest where experienced narcotics officer saw the defendant hand an individual an unidentified -58- object in exchange for money in a drug-prone location, and defendant acted “furtive[ly]” after the exchange); see also People v. DiMatteo, 62 A.D.3d 418, 419 (1st Dept. 2009) (police had probable cause to believe drug, rather than innocuous, transaction had occurred where man dropped softball-sized package through passenger side window of the defendant’s car without speaking to the defendant); People v. Hall, 234 A.D.2d 478 (2d Dept. 1996) (officer’s training and experience in narcotics investigations, as well as the defendant’s furtive behavior in placing a bag containing glassine envelopes on the front seat of a parked van and walking away, furnished probable cause). Based on the totality of these circumstances, the officers had probable cause to arrest defendant for receiving what they reasonably believed was a controlled substance from Gonzalez. See, e.,g., Selby, 82 A.D.3d at 433-34 (probable cause to arrest where experienced narcotics officer saw the defendant converse briefly with man known to be drug seller and receive unidentified object from man in exchange for money); People v. Jones, 186 A.D.2d 681, 682 (2d Dept. 1992) (probable cause where experienced detective observed the defendant, who he knew had sold narcotics on a prior occasion, exchange an unidentified object for currency in a narcotics-prone location); People v. Balas, 104 A.D.2d 1039 (2d Dept. 1984) (trained and experienced officer saw a narcotics trafficking suspect hand the defendant a “small paper packet” containing “an aluminum foil packet” in a drug- prone area). Accordingly, Alvarez properly arrested defendant and lawfully conducted -59- a search incident to arrest, whereby he recovered the plastic bag containing 350 grams of cocaine from defendant. Nonetheless, defendant claims that Alvarez did not have probable cause to arrest him because there was nothing inherently suspect about the plastic bag defendant removed from Gonzalez’s car trunk, and he suggests that Gonzalez “could have been doing [him] a favor by delivering any number of innocuous items” (Defendant’s Brief at 32-33, 38, 45). Defendant’s argument is meritless. To begin, probable cause does not require “proof beyond a reasonable doubt,” and that “[h]uman imagination might conjure up [a] possible innocent” explanation for the facts observed “cannot be the test.” Mercado, 68 N.Y.2d at 877. Rather, probable cause exists when, from the standpoint of a reasonable person who has the same training and experience as the arresting officer, it appears more probable than not that the suspect committed the offense. Carrasquillo, 54 N.Y.2d at 254; see also Mercado, 68 N.Y.2d at 877. As discussed above, given the officers’ training and expertise, their knowledge that Gonzalez was a narcotics dealer, and their observations of the transaction between Gonzalez and defendant, the officers had every reason to believe that it was more probable than not that defendant had received illegal drugs from Gonzalez. Moreover, the innocent scenarios that defendant proposes are not plausible in view of the totality of the circumstances of this case. Considering there was no proof or indication that Gonzalez and defendant were friends or that they even knew each -60- other -- indeed, defendant denied having approached Gonzalez’s car or having received from him the plastic bag in question -- it strains credulity that Gonzalez would do defendant the “favor” of driving more than 100 blocks and meeting defendant on a street corner at night in order to deliver him food or something else innocuous. Certainly, were Gonzalez making the trip for this purpose, one would expect the two to have more than a cursory conversation. In addition, as noted, the officers were justifiably suspicious because Gonzalez made defendant retrieve the plastic bag from the trunk of his vehicle, rather than handing it to defendant. Plainly, given the furtive conduct that permeated their meeting, it was more reasonable to conclude that defendant and Gonzalez had engaged in a narcotics transaction, rather than an innocent encounter. See Mercado, 68 N.Y.2d at 877 (rejecting the defendant’s suppression claim, even though “[h]uman imagination might conjure up possible innocent” reasons for the defendant’s conduct, because “[p]robable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt”). Defendant is also wrong to suggest that the police had to have observed a “hallmark of a drug transaction,” such as defendant’s receipt of a suspicious package or an exchange of money between defendant and Gonzalez, in order to have probable cause to believe that Gonzalez delivered narcotics to defendant (Defendant’s Brief at 31, 38, 45). Probable cause analysis focuses on “the totality of the circumstances,” and police officers need not observe “telltale” signs of narcotics in order to believe -61- that a defendant is involved in a drug transaction. Jones, 90 N.Y.2d at 837; see also People v. Goggans, 155 A.D.2d 689, 690 (2d Dept. 1989) (“In order to have probable cause to arrest, it is not necessary for the officer to observe an actual exchange of a vial or glassine envelope for cash”). In fact, it is entirely reasonable to conclude that Gonzalez delivered the cocaine to defendant in a generic plastic bag precisely because it appeared “innocuous” from the outside (Defendant’s Brief at 32), and thus, it would be less likely to stand out as containing drugs. See, e.g., McRay, 51 N.Y.2d at 599 (the defendant stored glassine envelopes containing heroin in a grocery bag); Graham, 211 A.D.2d at 59 (brown paper bag); Matter of Shaheem F., 229 A.D.2d 436, 437 (2d Dept. 1996) (plastic bag). In that regard, it bears emphasizing that the Appellate Division recognized that defendant’s white plastic bag could appear “innocuous” “if viewed in isolation,” but stressed that the bag had to be viewed “in context,” where “it clearly indicated the presence of a drug transaction.” Joseph, 121 A.D.3d at 446 (A3). Indeed, it is for this reason that the First Department has aptly held that “[t]he time has come to end our fixation with packaging,” People v. Schalich, 218 A.D.2d 398, 401 (1st Dept. 1996), to prevent narcotics sellers from “enjoy[ing] an immunity from arrest or search merely because they are able to conceal their wares.” Graham, 211 A.D.2d at 59.18 18 It is of no moment that Alvarez had not seen Gonzalez conduct “business” out of his BMW before defendant’s arrest (Defendant’s Brief at 42), considering that Gonzalez had purchased the car only 12 days earlier, on January 20, 2010 (Adamo: 216). -62- In sum, the Task Force had probable cause to believe that defendant had received narcotics from Gonzalez when he removed the white plastic bag from Gonzalez’s car trunk. Accordingly, Alvarez properly arrested defendant and recovered the drugs pursuant to a lawful search incident to arrest. 3. The Task Force Had at least Reasonable Suspicion that Defendant had Committed a Crime when he Removed the Plastic Bag from the Trunk of Gonzalez’s Car, thus Justifying a Forcible Stop of Defendant. That Reasonable Suspicion Ripened into Probable Cause when Defendant Actively Fled From, and Violently Struggled with, the Police. Alternatively, as both the hearing court and the Appellate Division rightly found, even if the Task Force officers did not have probable cause to arrest defendant after observing him retrieve the plastic bag from Gonzalez’s car trunk, the record certainly supports the conclusion that they had, at the very least, reasonable suspicion that a crime had occurred, thus warranting a forcible stop of defendant. Joseph, 121 A.D.3d at 86 (A3-4); Decision: A636. After all, as discussed in detail above, trained and experienced Task Force narcotics officers saw Gonzalez -- who they had reasonable cause to believe was a narcotics seller who was conducting a drug operation out of his lower Manhattan apartment -- transport a white plastic bag from his apartment and drive to Harlem with it in his BMW. Moments later, the officers witnessed defendant approach Gonzalez’s double-parked car, speak briefly to Gonzalez, remove the white plastic bag from the trunk of the BMW, put the bag in his jacket pocket, and walk away with it, as defendant drove off. Notwithstanding -63- defendant’s claim to the contrary (Defendant’s Brief at 46), which was rejected by both courts below, these observations surely provided reasonable suspicion to believe that defendant had acquired drugs from Gonzalez, even if they did not amount to probable cause. See, e.g., DiMatteo, 62 A.D.3d at 419 (probable cause, or in the alternative, reasonable suspicion, where officers observed man approach the defendant’s car and, without an exchange of words, drop “an unidentified, softball- sized package through the passenger-side window” and walk away, rather than handing it to the defendant); People v. Coleman, 183 A.D.2d 840, 840-41 (2d Dept. 1992) (reasonable suspicion where experienced officer observed two defendants, one of whom he believed to be involved in drug sales, conduct multiple transactions from their vehicle, including receiving an unidentified object from an individual who approached the driver’s side door as well as exchanging an unidentified object for currency). Accordingly, as the lower courts properly held, because Alvarez had at least reasonable suspicion that defendant had committed a crime, he was entitled to forcibly stop defendant. See DeBour, 40 N.Y.2d at 223 (police authorized to forcibly stop and detain suspect when they have reasonable suspicion that the suspect committed a crime). Thus, even if the hearing court did not expressly note in its decision that Alvarez testified that he grabbed defendant by his long braids before defendant fled (see Defendant’s Brief at 48), the fact that Alvarez may have initially tried to stop defendant by grabbing his hair did not make the stop an “illegal seizure,” -64- notwithstanding defendant’s claim otherwise (see Defendant’s Brief at 33, 47). Indeed, as even defendant himself appears to acknowledge (Defendant’s Brief at 49), grabbing defendant by his hair would be a lawful way to stop him if Alvarez had reasonable suspicion to believe that defendant had committed a crime. Here, contrary to defendant’s claim that the Task Force “had no more than a ‘founded suspicion’ of criminality that provided a common-law right of inquiry, but no authorization for a forcible stop or detention” of defendant (Defendant’s Brief at 38, 47-49), the evidence more than amply supported the hearing court’s determination that the Task Force, in fact, had probable cause to arrest defendant, or, at a minimum, reasonable suspicion that defendant had committed a crime when defendant removed the plastic bag from the trunk of Gonzalez’s car. That reasonable suspicion therefore justified Alvarez’s forcible stop of defendant, which included stopping defendant by grabbing his hair. Furthermore, defendant’s flight from, and subsequent struggle with, the Task Force officers when they attempted to stop him elevated the officers’ level of suspicion so as to give them probable cause to arrest defendant. See People v. Brown, 24 N.Y.2d 421, 423 (1969) (citing flight as additional behavior capable of raising “the level of inference from suspicion to probable cause”); People v. Moore, 6 N.Y.3d 496, 500 (2006) (active flight raises the level of suspicion). Here, Alvarez “identified himself as a police officer by loudly telling defendant, more than once, ‘Police, stop.’” Joseph, 121 A.D.3d at 446 (A4); Decision: A634; Alvarez: A262, A364-66. Instead of complying with Alvarez’s order, defendant fled into a nearby -65- housing project building. Joseph, 121 A.D.3d at 446 (A4); Decision: A634; Alvarez: A262, A364-66. Alvarez was forced to chase defendant into the building and only caught up to defendant when he stopped to open a stairwell door. Joseph, 121 A.D.3d at 446 (A4); Decision: A634; Alvarez: A262, A353. At that point, defendant violently struggled with Alvarez, including kicking Alvarez in the face, even after Alvarez tackled him to the ground and DiGiorgio arrived on the scene. Notably, defendant did so even though both officers repeatedly told him, “[P]olice, stop moving.” Joseph, 121 A.D.3d at 446 (A4); Decision: A634; Alvarez: A263, A355. Clearly, defendant’s prolonged flight and forceful struggle not only gave the officers an additional reason to believe that he had committed a crime, but it also contributed to a finding that their reasonable suspicion had ripened into probable cause to arrest defendant. Nonetheless, defendant argues that his flight and subsequent struggle did not elevate Alvarez’s suspicion to probable cause (Defendant’s Brief at 50-53). To support his argument, defendant claims that he fled from and fought with Alvarez only because he was being “closely followed after 9:00 p.m. in a high-crime neighborhood by an officer in plainclothes” and he “thought he was about to be robbed” (Defendant’s Brief at 50). Defendant’s contention, which was already considered and rejected by both lower courts, is still unavailing on his appeal before this Court. Notably, the suppression court refused to credit defendant’s testimony that Alvarez ran after him without ever identifying himself as a police officer -66- (Decision: A632; see Joseph: A509-10, 526). The hearing court’s credibility determination, which is entitled to great deference on appeal, People v. Prochilo, 41 N.Y.2d 759, 761 (1977), was entirely reasonable and well-founded. At the outset, as a predicate felon who had an obvious interest in the outcome of the case, defendant had a strong incentive to lie about his reasons for fleeing from Alvarez and then fighting with him in order to evade arrest. On the other hand, the court understandably credited Alvarez’s testimony that he “loudly” told defendant a “few times,” “Police, stop,” as defendant fled into a building in the housing project (Alvarez: A262, A364, A366), and that defendant violently struggled with Alvarez and DiGiorgio as they tried to subdue him inside the building, even though Alvarez and DiGiorgio repeatedly told defendant, “[P]olice, stop moving” (Alvarez: A262-63, A353-55). After all, there is simply no reason to believe, nor would it make sense, that Alvarez and DiGiorgio never identified themselves as police officers as they were chasing defendant and trying to get him to stop struggling with them, and that Alvarez would lie by insisting that they did. Plainly, defendant has failed to show that Alvarez’s testimony was manifestly untrue, physically impossible, contrary to experience, or self-contradictory. See People v. Blake, 123 A.D.3d 838 (2d Dept. 2014); People v. Bush, 107 A.D.3d 1581 (4th Dept. 2013); People v. Moore, 93 A.D.3d 519 (1st Dept. 2012). Accordingly, the hearing court’s factual findings, affirmed by the Appellate Division, should be credited in full. Simply put, the record supports the Appellate Division’s conclusion that defendant did not believe that he -67- was about to be mugged, but rather, that he “[a]ctively fled” from and struggled with the police in order to avoid apprehension. Moore, 6 N.Y.3d at 500.19 Finally, defendant attempts to distinguish some of the cases the hearing court and Appellate Division relied upon in determining that defendant’s flight raised Alvarez’s suspicion level to probable cause (Defendant’s Brief at 50-52). For example, defendant claims that People v. Martinez, 80 N.Y.2d 444 (1992), is inapposite because in that case, one of the officers from whom the defendant fled “had his badge displayed and the defendant knew him to be an officer from a previous encounter” (Defendant’s Brief at 50-51). Here, though, defendant had to have known that Alvarez was a police officer because, as the lower courts found, Alvarez identified himself as a police officer more than once by loudly telling defendant, “Police, stop.’” Joseph, 121 A.D.3d at 446 (A4); Decision: A634. Defendant also takes issue with the hearing court’s reliance on People v. Moore, 6 N.Y.3d 496 (2006), because “the evidence was suppressed” in that case (Defendant’s Brief at 51). The hearing court, however, aptly cited Moore for the well- settled proposition that, as in this case, a defendant’s “active” flight from police can, 19 Alvarez’s statement to defendant that he fit the description of a robbery suspect (Alvarez: A263, A359), does not support defendant’s claim that it was “plausibl[e]” that “robbery was a threat in the area” and that defendant actually believed he was about to be robbed when he fled (Defendant’s Brief at 50). Alvarez testified that he made that comment in order to get defendant to stop fighting, and because Alvarez did not want defendant to know that the officers had seen him take the white plastic bag from Gonzalez’s car and suspected that the bag contained drugs (Alvarez: A263, A355). -68- under some circumstances, increase the level of suspicion (Decision: A636, citing Moore, 6 N.Y.3d at 501). Moreover, contrary to defendant’s assertions (Defendant’s Brief at 51), Moore’s analysis does not “help[ ]” defendant. As discussed, Alvarez forcibly and lawfully stopped defendant only after he had, at a minimum, reasonable suspicion that defendant had received narcotics from Gonzalez. Similarly, the hearing court did not err in relying on People v. Ruiz, 190 A.D.2d 572 (1st Dept. 1993). Here, as in Ruiz, defendant fled after being confronted by the police, which contributed to the court’s finding that the Task Force had probable cause to arrest defendant. Ruiz, 190 A.D.2d at 572-73. Lastly, the Appellate Division properly relied on People v. Jenkins, 44 A.D.3d 400 (1st Dept. 2007), for the proposition that defendant’s flight from -- and subsequent struggle with -- a known and identified police officer elevated Alvarez’s suspicions and provided probable cause for defendant’s arrest. See Joseph, 121 A.D.3d at 446 (A4). Defendant attempts to distinguish Jenkins on the basis that the defendants’ flight in Jenkins was “unprovoked,” whereas his flight was “triggered by a plainclothes stranger trying to grab [his] hair” (Defendant’s Brief at 52). However, as discussed, both courts below rightly discredited defendant’s claim that he did not know that Alvarez was a police officer when he ran away from and then vigorously fought with Alvarez. -69- * * * In sum, defendant’s suppression claim presents a mixed question of law and fact that is not reviewable by this Court, for the evidence in the record amply supports the hearing court’s findings and conclusions, which were properly upheld by the Appellate Division. In any event, the lower courts correctly concluded that Detective Alvarez had probable cause to arrest defendant and to search him incident to the arrest. The lower courts also properly held, in the alternative, that Alvarez had, at a minimum, reasonable suspicion that defendant committed a crime, and that that reasonable suspicion ripened into probable cause upon defendant’s flight and subsequent struggle with the police. -70- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: MANU K. BALACHANDRAN Assistant District Attorney GRACE VEE MANU K. BALACHANDRAN Assistant District Attorneys Of Counsel August 27, 2015 -71-