| People v McNair |
| 2011 NY Slip Op 05637 [85 AD3d 693] |
| June 30, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Daniel McNair, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Shelia O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J., at suppressionhearing; Patricia M. Nunez, J., at plea and sentencing), rendered January 7, 2010, convictingdefendant of criminal possession of a controlled substance in the first degree, and sentencinghim, as a second felony drug offender, to a term of 13 years, unanimously affirmed.
The court properly denied defendant's suppression motion. Defendant failed to preserve hisclaim that the police lacked reasonable suspicion to stop a car in which he was a passenger(see People v Davis, 233 AD2d 148 [1996], lv denied 89 NY2d 941 [1997]; see also People v Colon, 46 AD3d260, 263 [2007]). Defendant likewise failed to preserve his claim that the procedure bywhich the People obtained a search warrant to retrieve information from his cell phone wasunconstitutional (see People v Iannelli, 69 NY2d 684 [1986], cert denied 482 US914 [1987]). We decline to review either of these claims in the interest of justice. As an alternateholding, we reject both claims on the merits.
When the police stopped the car in which defendant was riding, they clearly had reasonablesuspicion that defendant, along with the driver and other persons, had just taken part in a largedrug transaction. This was based on a long-term investigation, including surveillance andeavesdropping, that led to a chain of circumstantial evidence justifying the stop of the car.
The police took custody of a cell phone that defendant was carrying at the time of his arrest.While this case was pending in Supreme Court, the police obtained a search warrant to retrieveinformation from the phone. The ex parte procedure was lawful, since the target of a searchwarrant has no right to notice or an opportunity to be heard on the application (see CPLart 690; Matter of Albany County Dept.of Social Servs. v Rossi, 62 AD3d 1049, 1050 [2009]). We reject defendant's argumentthat a different procedure was constitutionally required under the circumstances of this case.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Saxe, Catterson,Moskowitz and Acosta, JJ.