Opinion
No. 446.
March 8, 2007.
Judgment, Supreme Court, New York County (Joan C. Sudolnik, J.)., rendered April 15, 2003, convicting defendant, after a nonjury trial, of criminal possession of a controlled substance in the seventh degree and loitering, and sentencing him to an aggregate term of one year, unanimously affirmed.
Steven Banks, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Before: Mazzarelli, J.P., Sullivan, Sweeny, Catterson and McGuire, JJ.
The court properly denied defendant's motion to suppress physical evidence. An officer observed defendant on a public street for over 35 minutes, in the company of two other men, in what appeared to be a dice game. When the officer approached, defendant dropped dice to the floor, and had money in his hand, confirming the officer's suspicions. The officer reasonably concluded that defendant was loitering in a public place for the purpose of gambling with dice ( see Penal Law § 240.35; People v King, 102 AD2d 710, affd 65 NY2d 702). There was no innocent explanation for the fact that defendant was visibly holding money during an apparent dice game; in any event, probable cause does not require proof beyond a reasonable doubt ( see Brinegar v United States, 338 US 160, 175; People v Bigelow, 66 NY2d 417, 423). We have considered and rejected defendant's remaining arguments.