| People v Nesbitt |
| 2008 NY Slip Op 08362 [56 AD3d 816] |
| November 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Scott Nesbitt,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston, for respondent.
Carpinello, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered December 17, 2007, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree.
The police received a call from a citizen informant that two individuals were involved indrug activity at 59 Henry Street in the City of Kingston, Ulster County. Police officer Eric VanAllen and his partner responded to that address, located in an area known for narcotics dealingand gang activity, and approached defendant and another individual who were standing in frontand who matched the description given the officers. As he got within 10 feet of the twoindividuals, Van Allen observed a pocket knife clipped to defendant's pants pocket. Van Allenthen conducted a pat-down frisk of defendant and took possession of the knife. As he continuedthe pat-down search, Van Allen felt a bulge in defendant's sock. At that point defendant admittedthat he was carrying marihuana and Van Allen subsequently removed multiple bags of marihuanafrom the sock and placed defendant under arrest. Defendant was then taken to policeheadquarters where Van Allen inquired if there was anything else he should be made aware of ondefendant's person. Defendant then admitted to carrying additional amounts of marihuana in hisshoe and having other controlled substances, later determined to be cocaine, down his pants.
Defendant was thereafter indicted for the crimes of criminal possession of a controlled [*2]substance in the third degree, criminal possession of a controlledsubstance in the fourth degree and loitering in the first degree. Following the denial ofdefendant's suppression motion, defendant pleaded guilty to criminal possession of a controlledsubstance in the third degree in full satisfaction of the charges. Defendant was thereaftersentenced to a four-year term of imprisonment, with 1½ years of postrelease supervision.
On appeal, defendant challenges County Court's suppression ruling, initially arguing that hewas stopped and detained by the police illegally and that the evidence seized during the pat-downfrisk was the product of an unlawful arrest. We disagree. When a police officer has a reasonablesuspicion that a person has committed, is committing or is about to commit a crime, he or she isauthorized to make a forcible stop and detain such person (see People v Cantor, 36 NY2d106, 112 [1975]; People v Dorney,35 AD3d 1032 [2006], lv denied 8 NY3d 921 [2007]; People v Roots, 13 AD3d 886, 887[2004], lv denied 4 NY3d 890 [2005]). "To justify such an intrusion, the police officermust indicate specific and articulable facts which, along with any logical deductions, reasonablyprompted that intrusion" (People v Cantor, 36 NY2d at 113; see Terry v Ohio,392 US 1, 20 [1968]; People v Williams, 305 AD2d 804, 806 [2003]). Here, as defendantmatched the description given by the citizen informant and was observed at the scene of thereported crime—an area known for drug trafficking—within minutes of theinformant's call to the police, Van Allen's initial detention of him was based upon a reasonablesuspicion supported by "articulable facts, credible objective evidence, and the rational inferencesthat flow therefrom" (People v Hicks, 68 NY2d 234, 243 [1986]; accord People vBuchta, 182 AD2d 853, 853 [1992], lv denied 80 NY2d 829 [1992]; see People vBailey, 259 AD2d 779, 780 [1999]; People v Shakur, 233 AD2d 793, 795 [1996],lv denied 89 NY2d 1041 [1997]; People v Buyce, 152 AD2d 857, 858-859[1989], lv denied 74 NY2d 845 [1989]).
In effectuating a stop based upon a reasonable suspicion of criminal behavior, "the officer isauthorized to frisk the person if the officer reasonably believes that he or she is in danger ofphysical injury" (People v Schwing,14 AD3d 867, 868 [2005]; see CPL 140.50 [1], [3]; People v Williams, 305AD2d at 806). As defendant was observed with a pocket knife clipped to his pants, we find thatthe pat down of defendant in search of other weapons was justified to protect Van Allen's safety(see People v Buckmon, 199 AD2d 620, 621 [1993], lv denied 83 NY2d 803[1994]; see generally Terry v Ohio, 392 US at 27). Defendant's subsequent admissionthat he possessed marihuana upon Van Allen's discovery of the bulge in defendant's sock duringthe pat down provided probable cause for his arrest (see People v Smith, 275 AD2d 687[2000], lv denied 95 NY2d 938 [2000]).
Defendant also contends that the admissions he made at police headquarters before beingsearched concerning the marihuana in his shoe and the cocaine in his pants, as well as the drugsfound on him, should have been suppressed as they were the result of an investigatoryinterrogation without the proper Miranda warnings. Clearly, police officers areauthorized to search a defendant incident to his or her lawful arrest (see People v Ruppert, 42 AD3d817, 818 [2007], lv denied 9 NY3d 964 [2007]; People v Ormsby, 30 AD3d 757, 758 [2006], lv denied 7NY3d 816 [2006]). According to the testimony of Van Allen, deemed credible by County Court,defendant admitted to possessing the drugs in response to Van Allen's routine inquiry if there wasanything he should be aware of prior to conducting a search of defendant's person as part ofprocessing him pursuant to his arrest. As the record supports a finding that Van Allen's inquirywas part of the normal utterances attendant to a search of an individual under arrest anddefendant's response was voluntary and not the product of an investigatory interrogation (seePeople v Burgess, 241 AD2d 765, 767 [1997], lv denied 91 NY2d 870 [1997]), wefind no basis [*3]to disturb County Court's determination thatsuppression of the evidence was unwarranted (see People v Phillips, 46 AD3d 1021, 1022 [2007], lvdenied 10 NY3d 815 [2008]; People v Gutkaiss, 206 AD2d 628, 629-630 [1994],lv denied 84 NY2d 936 [1994]).
Cardona, P.J., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.