| People v Harper |
| 2010 NY Slip Op 04472 [73 AD3d 1389] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelHarper II, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered August 11, 2006, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree.
Defendant was indicted on one count of criminal possession of a controlled substance in thethird degree following a traffic stop during which a substantial quantity of cocaine wasdiscovered on his person. After his motion to suppress the seized cocaine was denied, defendantpleaded guilty as charged and was sentenced to a prison term of three years and postreleasesupervision of two years. He now appeals, focusing solely upon the propriety of County Court'ssuppression ruling.
Deferring to County Court's assessment of the credibility of witnesses at the suppressionhearing, we affirm (see People vTillman, 57 AD3d 1021, 1022 [2008]; People v Ruffin, 56 AD3d 892, 893 [2008]). The police officersinvolved appropriately stopped the automobile in which defendant was traveling after observingthat neither he nor the driver was wearing his seat belt (see People v Banks, 85 NY2d558, 562 [1995], cert denied 516 US 868 [1995]; People v Noonan, 220 AD2d811, 812 [1995]). After the stop, defendant exited the vehicle without prompting and, despitebeing advised that he would have to remain near the car and that the officers intended to tickethim, attempted on more than one occasion to walk away, eventually [*2]forcing an officer to detain him so that a ticket could be issued. Inthis context, defendant's evasive and suspicious conduct provided reasonable suspicion justifyinghis detention and a protective frisk, particularly when coupled with the fact that the officer whodetained defendant was aware of allegations that defendant was involved in the gun trade(see People v King, 65 NY2d 702, 703 [1985]; People v Nichols, 250 AD2d 370,370-371 [1998], lv denied 92 NY2d 881 [1998]). Given that defendant continued toresist, the officer's lifting of his untucked shirt to check his waistband for weapons during thatfrisk—at which time the cocaine became plainly visible—was reasonable and notintrusive (see People v Muniz, 12AD3d 937, 939 [2004]; People v Forbes, 283 AD2d 92, 96-97 [2001], lvdenied 97 NY2d 681 [2001]; cf. People v Miles, 208 AD2d 1089, 1091-1092[1994]).
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.