People v. Barrett

Judgment, Supreme Court, New York County (James A. Yates, J.), rendered September 16, 2003, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of 1 to 3 years, affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

The court properly denied defendant’s suppression motion. Although the hearing court discredited some of the police testimony, it was entitled to accept other portions of such testimony that it found to be true (see People v Pacifico, 95 AD2d 215 [1983]). “[T]he maxim falsus in uno falsus in omnibus . . . is permissive only—not mandatory ...” (People v Becker, 215 NY 126, 144 [1915]). While the People had the burden of coming forward with credible evidence, those portions of the evidence that the court credited satisfied that burden.

The police had reasonable suspicion to believe that a drug transaction was about to take place, since a sergeant overheard a man at a drug-prone location placing an order for drugs, using a slang term with which the sergeant was familiar. The hearing court properly exercised its discretion in permitting the sergeant to testify on rebuttal even if his testimony should have been part of the People’s direct case (see e.g. People v Alvino, 71 NY2d 233, 247-248 [1987]).

The degree of force used by the police was not unreasonable. “[P]ersons who are engaged in narcotics transactions . . . are frequently armed” (People v Hines, 102 AD2d 713, 714 [1984]), and police approaching a suspect seated in an automobile are in a dangerous position (Pennsylvania v Mimms, 434 US 106, 110 [1977]). Since the police were approaching a car which contained two drug suspects and which had darkly tinted windows that prevented the police from seeing if the occupants were armed, it was reasonable for them to approach with guns drawn and pull the occupants out of the car (see e.g. People v Finlayson, 76 AD2d 670, 678-681 [1980], lv denied 51 NY2d 1011 [1980], cert denied 450 US 931 [1981]; United States v Lechuga, 925 F2d 1035, 1040 [7th Cir 1991]), an action that revealed the presence of drugs where defendant had been sitting.

We have considered defendant’s remaining arguments and find them unavailing. Concur—Saxe, J.P., Nardelli and Gonzalez, JJ.