In a buy-and-bust situation, can a defendant deny participating in the drug transaction and deny that he or she was standing on the street at the time of arrest?

In the buy-and-bust situation, probable cause is generated by the drug transaction, and thus an allegation that defendant was merely standing on the street at the time of arrest does not frame a factual issue for the court's determination; to do [82 N.Y.2d 429] so defendant must additionally deny participating in the transaction or suggest some other grounds for suppression. But when the police claim that defendant was acting "suspiciously" or "furtively," defendant could raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched compare, e.g., People v. Millan, 69 N.Y.2d 514, 521, 516 N.Y.S.2d 168, 508 N.E.2d 903; People v. Rivera, 20 N.Y.2d 669, 670-671, 282 N.Y.S.2d 279, 229 N.E.2d 59. Indeed, frequently there is little else of consequence defendant can say.

(3) Information Available to Defendant