| People v Fabian |
| 2008 NY Slip Op 08997 [56 AD3d 334] |
| November 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rafael Fabian, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J., at hearing; Ronald A.Zweibel, J., at plea and sentence), rendered November 22, 2006, convicting defendant of criminalpossession of a controlled substance in the fifth degree, and sentencing him to a term of fiveyears' probation, unanimously affirmed.
The court properly denied defendant's suppression motion. In the late evening, in adrug-prone location, a detective in civilian clothes in an unmarked car observed activity that herecognized as a possible drug transaction, in which defendant made hand-to-hand contact withanother person. When the detective and his partner approached, defendant behaved in a nervousmanner warranting a reasonable inference that he realized he was in the presence of the policeand was trying to change direction to avoid them. Defendant refused to respond to the detective'srepeated inquiries and walked away, and then raised to his mouth the same hand he used in theapparent hand-to-hand transaction, thus suggesting a possible attempt to destroy evidence byswallowing it. While each of these events, viewed separately, might be susceptible of innocentinterpretation, when viewed collectively they at least provided sufficient reasonable suspicion towarrant physical restraint of defendant (see People v Oeller, 191 AD2d 355 [1993],affd 82 NY2d 774 [1993]), which resulted in the officers' observation of an apparent drugpackage in defendant's mouth. Concur—Tom, J.P., Andrias, Friedman, Catterson andAcosta, JJ.