| People v Drake |
| 2012 NY Slip Op 01885 [93 AD3d 1158] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Albert Drake,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Christopher P. Jurusik of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered August 3, 2010. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fifth degree, tampering with physical evidence andfalse personation.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, interalia, criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[5]), defendant contends that Supreme Court erred in refusing to suppress both physical evidencediscovered in his vehicle by the police and his statements to the police. We reject that contention.As defendant correctly concedes, the People established that the police officer was entitled toapproach him to conduct a common-law inquiry because the officer had the requisite "foundedsuspicion that criminal activity [was] afoot" (People v De Bour, 40 NY2d 210, 223[1976]). On the evening prior to the police conduct at issue, the police received five separate 911telephone calls reporting a man displaying a handgun. The callers provided detailed descriptionsof the suspect's physical appearance, his vehicle, and his location. When the police responded tothe scene, however, they were unable to locate the suspect or a handgun. While on patrol thefollowing evening near the location where the suspect had been reported, an officer observed avehicle matching the description provided by the 911 telephone callers being driven into a gasstation. In addition, the driver's physical appearance and clothing matched the descriptions of thesuspect provided in the 911 telephone calls. Based upon that information, the officer wasjustified in approaching defendant and requesting his name (see generally People v Moore, 6 NY3d 496, 500 [2006]; DeBour, 40 NY2d at 223). After the officer parked his patrol vehicle behind defendant's vehicleat the gas station, however, defendant "jumped out of the car, leaving the [driver's side] dooropen," and "dart[ed]" toward the store. The officer further testified that he could not seedefendant's hands and that defendant was moving his arms in an unusual manner. Defendant'sactions upon exiting the vehicle, coupled with the 911 telephone calls that a man matching hisdescription had been seen displaying a handgun in the area the previous evening, furnished therequisite reasonable suspicion for the officer to detain defendant temporarily (see [*2]Moore, 6 NY3d at 500-501; People v Benjamin, 51NY2d 267, 270-271 [1980]). For the same reasons, the officer was justified in conducting alimited protective frisk of defendant's outer clothing in order to ascertain whether he was armed(see People v Wilson, 50 AD3d1609, 1610 [2008], lv denied 11 NY3d 796 [2008]; People v Robinson, 278AD2d 808, 809 [2000], lv denied 96 NY2d 787 [2001]).
Contrary to defendant's further contention, we conclude that he was not subjected to a defacto arrest when he was briefly detained in the patrol vehicle for the officer's safety (see People v McCoy, 46 AD3d1348, 1349 [2007], lv denied 10 NY3d 813 [2008]; cf. People v Lowman, 49 AD3d1262, 1263-1264 [2008]; see generally People v Allen, 73 NY2d 378, 379-380[1989]). It is well established that not every forcible detention constitutes an arrest (seePeople v Hicks, 68 NY2d 234, 239 [1986]). Indeed, "[i]n determining whether a de factoarrest has taken place, the test to be applied is what a reasonable person, innocent of any crime,would have thought had he [or she] been in the defendant's position" (People v Ward,163 AD2d 501, 502 [1990], lv denied 77 NY2d 883 [1991]; see Hicks, 68 NY2dat 240; People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851[1970]). Here, after the officer was unable to complete the pat down of defendant due todefendant's bulky clothing and repeated movements, the officer placed defendant in the backseatof the patrol vehicle for the officer's safety, until assistance arrived. Backup arrivedshortly thereafter and, after the second officer observed crack cocaine on the front seat ofdefendant's vehicle, the police advised defendant of his rights and placed him under arrest. Underthe circumstances presented, the officer was entitled to "effect [defendant's] nonarrest detentionin order to ensure [his] own safety" while awaiting assistance (Allen, 73 NY2d at 379).
Finally, to the extent that defendant's contention that he was denied effective assistance ofcounsel is not forfeited by his guilty plea (see People v Shubert, 83 AD3d 1577 [2011]), we conclude that itlacks merit. Defendant's contention is based on the alleged failure of defense counsel to make anyarguments in support of suppression. Although no motion papers are included in the record onappeal, it is apparent from the court's suppression decision and order that defense counsel in factmade arguments in support of suppression, including that the police lacked the authority to stopand frisk defendant and that defendant's statements were involuntary. Moreover, a review of thesuppression hearing transcript reflects that defense counsel focused his cross-examination at thesuppression hearing on those issues. Thus, contrary to defendant's contention, defense counseldeveloped a strategy in seeking suppression of both the physical evidence seized by the policeand defendant's statements to the police (see generally People v Ford, 86 NY2d 397, 404[1995]). Present—Scudder, P.J., Centra, Peradotto, Lindley and Martoche, JJ.