| People v West |
| 2010 NY Slip Op 01734 [71 AD3d 435] |
| March 4, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Derrick West, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (James A. Yates, J., at suppression hearing;Edwin Torres, J., at plea and sentence), rendered January 18, 2007, convicting defendant ofcriminal possession of a controlled substance in the third degree, and sentencing him, as asecond felony drug offender whose prior felony conviction was a violent felony, to a term of sixyears, unanimously affirmed.
Defendant's suppression motion was properly denied. There is no reason to disturb thecourt's credibility determinations, which are supported by the record. The initial policequestioning of defendant was based on a founded suspicion of criminality, created by defendant'spresence in the lobby of a public housing apartment building known as a drug-prone location,and the officer's observations of defendant counting money and then immediately putting it in hispocket upon seeing the officer. Suspicion of criminal activity was heightened by defendant'sfailure to respond meaningfully to the arresting officer's reasonable inquiry as to whetherdefendant was visiting a building resident and the movement of defendant's hands to his bulgingpockets. Defendant ignored the officer's demand to keep his hands out of his pockets. Underthese circumstances, the officer was justified in approaching defendant to frisk him (seeCPL 140.50; People v Benjamin, 51 NY2d 267, 271 [1980]). Moreover, when defendantgrabbed the officer's hand, reasonable suspicion of criminal activity was raised to the level ofprobable cause to arrest (see People v Henriquez, 128 AD2d 803 [1987]; see also People v Flow, 37 AD3d303, 304 [2007], lv denied 9 NY3d 843 [2007] ["the [*2]police at least had reasonable suspicion for a stop and frisk, whichescalated to probable cause when defendant put up a violent struggle, refusing to be frisked"]).Concur—Mazzarelli, J.P., Acosta, Renwick and Freedman, JJ.