| People v Lowe |
| 2010 NY Slip Op 09679 [79 AD3d 1676] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Patrick D.Lowe, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas M. Van Strydonck,J.), rendered January 24, 2005. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the first degree, criminal possession of acontrolled substance in the third degree and speeding.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, criminal possession of a controlled substance in the first degree (Penal Law §220.21 [former (1)]) and criminal possession of a controlled substance in the third degree(§ 220.16 [1]). Defendant contends that Supreme Court erred in refusing to suppressevidence seized by the police from the vehicle defendant was driving. We reject that contention.The police officer who stopped the vehicle testified at the suppression hearing that he did sobased on his observation that defendant was driving in excess of the posted speed limit. "Thecourt's determination to credit the testimony that the stop was based on a traffic violation isentitled to great deference" (People vFrazier, 52 AD3d 1317 [2008], lv denied 11 NY3d 788 [2008]). The record ofthe suppression hearing establishes that the police officer had a founded suspicion that criminalactivity was afoot, and thus he was justified in asking defendant if there was anything in thevehicle that was illegal and in asking for defendant's consent to search the vehicle (see People v Ponder, 43 AD3d1398, 1399 [2007], lv denied 10 NY3d 770 [2008]; see also People v Edwards, 14 NY3d741, 742 [2010], rearg denied 14 NY3d 794 [2010]). At the time the police officerasked defendant those questions, he was aware that he was assisting in a narcotics investigationwhere defendant was seen leaving in the stopped vehicle from a known drug location. Further,defendant appeared very nervous and lied about the location from where he was driving. Therecord also establishes that defendant voluntarily consented to the search of the vehicle (seePonder, 43 AD3d at 1399). "That search properly encompassed containers within thevehicle" (People v Forte, 234 AD2d 891, 892 [1996], lv denied 90 NY2d 939[1997]), including the box in which the drugs were found.
We have considered defendant's remaining contentions and conclude that they are without[*2]merit. Present—Smith, J.P., Centra, Fahey, Peradottoand Pine, JJ.