| People v Abdur-Rashid |
| 2009 NY Slip Op 06050 [64 AD3d 1087] |
| July 30, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SaddiqAbdur-Rashid, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Columbia County (Czajka, J.),rendered April 9, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the first degree.
State Trooper Douglas Colwell and his canine partner A.J. were on patrol on the TaconicState Parkway when Colwell noticed defendant's vehicle approaching. The vehicle had no frontlicense plate and appeared to have branches attached to it, among other irregularities. Colwellpulled the car over and ran a license plate check which revealed that the car was registered todefendant but that the registration was suspended due to a lapse in insurance coverage. Uponbeing told by Colwell of the insurance lapse, defendant informed Colwell that he had been pulledover by another trooper earlier in the day, who had confirmed defendant's statement that theinsurance was in full force and effect. As evidence of this, defendant showed Colwell a citationhe had received from State Trooper Scott Conlee for an uninspected motor vehicle (but not forlack of insurance [see Vehicle and Traffic Law § 319] or driving with a suspendedregistration [see Vehicle and Traffic Law § 401]). After Colwell unsuccessfullyattempted to reach Conlee in order to confirm this information, he asked defendant to exit thevehicle. According to Colwell, defendant seemed nervous during the course of their conversationand repeatedly looked at A.J., who was in Colwell's vehicle. Colwell further testified thatdefendant's passenger, Ekwambu Gayle, told Colwell that defendant had been en [*2]route from Washington, D.C. and had asked Gayle to accompanyhim from Brooklyn to the City of Schenectady, Schenectady County in order to keep him awake.According to Gayle, defendant's plan was to return Gayle to his home in Brooklyn and then driveback to Schenectady.
When Colwell let A.J. out of his trooper car, A.J. immediately "alerted" to the presence ofnarcotics and led Colwell to the trunk area of the vehicle. When the trunk was opened, A.J.alerted Colwell to a black plastic bag in the trunk which contained two bags of cocaine.Defendant and Gayle were placed under arrest and subsequently charged by indictment with asingle count of criminal possession of a controlled substance in the first degree. After conductinga suppression hearing, County Court found Colwell's search to be lawful. Thereafter, defendantpleaded guilty to one count of criminal possession of a controlled substance in the first degree.Defendant now appeals and we affirm.
Initially, we disagree with County Court's determination that there was a valid inventorysearch of defendant's vehicle. " 'To be valid, an inventory search must be both reasonable andconducted pursuant to established police agency procedures that are designed to meet thelegitimate objectives of the search while limiting the discretion of the officer in the field' "(People v Peters, 49 AD3d 957, 958 [2008], lv denied 10 NY3d 938 [2008],quoting People v Briggs, 21 AD3d 1218, 1219 [2005], lv denied 5 NY3d 851[2005]). Here, although Colwell testified that protocols for conducting inventory searchesexisted, the People presented no evidence of the substance of such protocols or establishing thatColwell followed them. Thus, the People failed to meet their burden of demonstrating a validinventory search (see People v Johnson, 1 NY3d 252, 256 [2003]).
Nonetheless, the record supports County Court's determination denying suppression.Because Colwell had a reasonable basis to suspect that criminal activity was underway, he waspermitted to conduct a canine sniff of the exterior of the vehicle (see People v Devone,57 AD3d 1240, 1242-1243 [2008], lv granted 12 NY3d 852 [2009]). Specifically, thecondition of the car, the suspended registration and other infractions, defendant's nervousdemeanor and Gayle's account of defendant's travel plans and the reason for his presence in thevehicle were—in the aggregate—sufficient to give Colwell a founded suspicion thatcriminality was afoot. We further note that "[a] canine sniff of the exterior of a car during alawful traffic stop that does not unnecessarily prolong the encounter[, as was the case here,] isnot a violation of the 4th Amendment to the US Constitution" (id. at 1241).
Colwell also testified that when A.J. was first taken out of the police vehicle and was stillfive feet away from defendant's car, he began to alert by pulling on his lead. OnceA.J.—whose training and reliability was established at the hearing—got closer tothe vehicle, he alerted to the presence of narcotics in the trunk, giving Colwell probable cause toenter and search the trunk (see id.; People v Gathogo, 276 AD2d 925, 927[2000], lv denied 96 NY2d 734 [2001]), wherein Colwell found the black bag containingcocaine. Thus, County Court properly denied defendant's motion to suppress the narcotics.
Defendant's remaining contentions with regard to the permissibility of the inventory searchare rendered academic by the foregoing determination. We have reviewed all other contentionsraised by defendant and find them to be without merit.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.