People v Bonilla

2011 NY Slip Op 01350

Decided on February 22, 2011

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 22, 2011
Tom, J.P., Sweeny, Acosta, Renwick, Manzanet-Daniels, JJ.
4340 239/08






Steven Banks, The Legal Aid Society, New York (Amy Donner
of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L.
Bautista of counsel), for respondent.

Judgment, Supreme Court, New York County (Herbert Adlerberg, J.H.O. at suppression hearing; Charles H. Solomon, J. at suppression ruling, plea and sentence), rendered July 29, 2008, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 4½ years, unanimously affirmed.

The court properly denied defendant's suppression motion. Defendant alleges on appeal that physical evidence and statements should have been suppressed as fruits of an unlawful vehicle stop. However, defendant did not preserve these claims, and the suppression court did not "expressly decide[ ]" (CPL 470.05[2]) the particular issues raised on appeal (see People v Turriago, 90 NY2d 77, 83-84 [1997]; see also People v Colon, 46 AD3d 260, 263 [2007]). We decline to review these unpreserved claims in the interest of justice. As an alternative holding, we also reject them on the merits.

An officer saw defendant sitting behind the wheel of a car parked in a bus stop. Defendant's car remained in the bus stop for several minutes before driving away, and there is no evidence that defendant was receiving or discharging passengers. Accordingly, it is clear that defendant was parked illegally, and his arguments to the contrary are without merit. Therefore, the police lawfully stopped the car on that basis (see Whren v United States, 517 US 806 [1996]; People v Robinson, 97 NY2d 341 [2001]).

In addition, while defendant was parked, the officer saw defendant engage in furtive hand motions with a man who approached his car. Based on her experience, the officer recognized a pattern of suspicious actions indicative of a drug transaction (see People v Jones, 90 NY2d 835 [*2][1997]). Accordingly, the police had reasonable suspicion upon which to stop defendant's car on that basis as well.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 22, 2011

CLERK