| People v Dwyer |
| 2010 NY Slip Op 04014 [73 AD3d 1467] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Dwyer,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered April 30, 2007. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, ofcriminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]).We conclude that defendant forfeited his contention that Supreme Court erred in refusing tosuppress the evidence seized from his person when the police stopped his vehicle, inasmuch ashe pleaded guilty before the court issued a final suppression order (see CPL 710.70 [2];People v Powless, 66 AD3d1353 [2009]). In any event, that contention is without merit. The People established thereliability and basis of knowledge of the informant who provided the police with informationconcerning defendant's drug activities (see People v DiFalco, 80 NY2d 693, 696-697[1993]; see generally Spinelli v United States, 393 US 410 [1969]; Aguilar vTexas, 378 US 108 [1964]), and the police had reasonable suspicion to stop defendant'svehicle based on that information. "Upon making the valid traffic stop, the officer[ ] [was]entitled . . . to conduct the limited protective pat-down search of defendant for thepresence of weapons" (People vDouglas, 42 AD3d 756, 757-758 [2007], lv denied 9 NY3d 922 [2007]). Afterdefendant was informed that his girlfriend had admitted that there were drugs at the couple'sresidence, defendant spontaneously stated that the drugs were his and began reaching into hisjacket pocket. Thus, "the officer[ ]—having no knowledge as to what defendant wasreaching for—acted reasonably and lawfully in attempting to stop [defendant]" andreaching into defendant's pocket himself (People v Williams, 25 AD3d 927, 929 [2006], lv denied 6NY3d 840 [2006]). The discovery of cocaine in defendant's pocket gave the police probablecause to arrest defendant (see id.). Contrary to the further contention of defendant, thecourt properly determined that his girlfriend's consent to search their residence was not coerced."[M]uch weight must be accorded the determination of the suppression court with its peculiaradvantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759,761 [1977]; see People vWitherspoon, 66 AD3d 1456, 1458 [2009], lv denied 13 NY3d 942 [2010]).
Finally, to the extent that the contention of defendant that he was deprived of effective [*2]assistance of counsel is not forfeited by the plea (see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), it lacks merit. The record establishesthat defendant received an advantageous plea, and nothing in the record suggests that defensecounsel's representation of defendant was anything less than meaningful (see generallyPeople v Ford, 86 NY2d 397, 404 [1995]). Present—Smith, J.P., Carni, Lindley,Sconiers and Pine, JJ.