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PEOPLE v. SUTTON

43 A.D.3d 133 (2007)

839 N.Y.S.2d 746

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHAMROD SUTTON, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DONNIE SIMMONS, Appellant.

Appellate Division of the Supreme Court of the State of New York, First Department.

July 12, 2007.

Attorney(s) appearing for the Case

Robert S. Dean, Center for Appellate Litigation, New York City (Lyssa M. Sampson of counsel), for Shamrod Sutton, appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York City (Risa Gerson of counsel), for Donnie Simmons, appellant.

Robert M. Morgenthau, District Attorney, New York City (Ellen Stanfield Friedman and Eleanor J. Ostrow of counsel), for respondent.

MAZZARELLI, J.P., WILLIAMS and GONZALEZ, JJ., concur with KAVANAGH, J.; CATTERSON, J., dissents as to defendant Simmons in a separate opinion.

OPINION OF THE COURT

KAVANAGH, J.

On the morning of September 22, 2004, Police Officer Jason Miletic from the 28th Precinct's Street Narcotics Enforcement Unit observed defendant Shamrod Sutton approach defendant Donnie Simmons and saw Simmons hand Sutton money. Sutton then gave a black pouch to Simmons. A short while later, Officer Miletic observed an individual approach Simmons, who removed a small object from the black pouch, gave the object to the individual...

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