| People v Vega |
| 2008 NY Slip Op 08769 [56 AD3d 578] |
| November 12, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Fernando Vega, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered October 4, 2006, convicting him of criminal possession of a controlled substance in thethird degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which wasto suppress physical evidence.
Ordered that the judgment is affirmed.
"Probable cause requires . . . information which would lead a reasonable personwho possesses the same expertise as the officer to conclude, under the circumstances, that acrime is being or was committed" (People v McRay, 51 NY2d 594, 602 [1980]; see People v Cooper, 38 AD3d678, 679 [2007]). "The probable cause determination of the hearing court, which had theadvantage of hearing and seeing the witnesses firsthand, is to be accorded great weight on appeal,and will not be disturbed unless clearly unsupported by the record" (People v Francis, 44 AD3d 788,789 [2007]; see People v Prochilo, 41 NY2d 759, 761 [1977]).
Here, an experienced narcotics detective observed the defendant, in a location known fordrug sales, hand a small white packet to an individual in exchange for money, and thereafter,remain on the [*2]same street corner, moving back and forth, forthe next three or four minutes. We are satisfied that, under the totality of the circumstances, therewas sufficient information to lead a reasonable person who possessed the same expertise as thearresting detective to conclude that a crime had been committed and, therefore, that probablecause to arrest existed (see People v Jones, 90 NY2d 835, 837 [1997]; People v Tinnin, 36 AD3d 457,458 [2007]; People v Hartman, 294 AD2d 446 [2002]; People v Mariner, 147AD2d 659, 659-660 [1989]; People v Brown, 124 AD2d 592 [1986]).
Incident to the arrest, the detective searched the defendant's pockets and pants cuffs, andwhen no evidence or weapons were uncovered, asked the defendant to remove his sneakers.During the search of the sneakers, the defendant stood on the sidewalk in his socks. Fortyglassine envelopes of heroin were found inside one of the sneakers. Contrary to the defendant'scontention, the removal of his sneakers was not a "strip search" because his body was notvisually inspected (see People v Hall,10 NY3d 303, 306 [2008], cert denied 553 US —, 129 S Ct 159[2008]; People v Butler, 27 AD3d365, 369 [2006]; cf. People v Jennings, 297 AD2d 644, 645 [2002]). In any event,the detective had a reasonable suspicion that the defendant had concealed evidence in hissneakers based upon his past experience with narcotics arrests and the fact that evidence was notfound in the defendant's other clothing (see People v Hall, 10 NY3d at 311-312). Thedetective's actions were reasonable under the circumstances and limited specifically to preventingthe destruction or concealment of evidence of the crime, which is a permissible objective of awarrantless search incident to an arrest (id. at 309-311; see People v Belton, 55NY2d 49, 52-53 [1982]; People v Adams, 32 NY2d 451, 455 [1973]). Spolzino, J.P.,Florio, McCarthy and Dickerson, JJ., concur.