| People v Fagan |
| 2012 NY Slip Op 06432 [98 AD3d 1270] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael A.Fagan, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Dennis F. Bender, A.J.), renderedJune 23, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa controlled substance in the third degree (two counts) and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts of criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1], [12]) and one count of resisting arrest (§ 205.30). Contrary to defendant'scontention, County Court properly refused to suppress the bag of cocaine seized by the policewhen it fell to the ground from his pant leg during a pat frisk. The officers lawfully stopped thevehicle in which defendant was a passenger because it had excessively tinted windows (see People v Estrella, 48 AD3d1283, 1285 [2008], affd 10 NY3d 945 [2008], cert denied 555 US 1032[2008]), and lawfully directed defendant to exit the vehicle (see People v Robinson, 74NY2d 773, 775 [1989], cert denied 493 US 966 [1989]; People v Henderson, 26 AD3d444, 445 [2006], lv denied 6 NY3d 895 [2006]). Based on defendant's movementsboth inside and outside the vehicle, the officers suspected that defendant was attempting toconceal something (see People v Batista, 88 NY2d 650, 654 [1996]; People v Grant, 83 AD3d 862,863-864 [2011], lv denied 17 NY3d 795 [2011]), and they reasonably suspected thatdefendant was armed and posed a threat to their safety because his actions were directed to thearea of his waistband, which was concealed from their view (see People v Bracy, 91 AD3d 1296, 1297 [2012]; People v Nelson, 67 AD3d 486,487 [2009]). In addition, defendant continued to move his hands toward his waistband despitethe officers' repeated requests that he stop doing so (see People v Mack, 49 AD3d 1291, 1292 [2008], lv denied10 NY3d 866 [2008]; People v Robinson, 278 AD2d 808, 809 [2000], lv denied96 NY2d 787 [2001]). Based upon their reasonable belief that defendant was armed, the officerslawfully conducted a pat frisk (see Henderson, 26 AD3d at 445), and were entitled to usehandcuffs to ensure their safety while conducting the frisk (see People v Allen, 73 NY2d378, 379-380 [1989]; Henderson, 26 AD3d at 445). Contrary to defendant's contention,the use of handcuffs did not transform his detention into an arrest, requiring probable cause(see Allen, 73 NY2d at 380; People v Tiribio, 88 AD3d 534, 535 [2011], lv denied 18NY3d 862 [2011]). The officers thereafter acquired probable cause to arrest defendant, however,when the bag of cocaine fell to the ground from his pant leg (see People v Schell, 261AD2d 422, 422-423 [1999], lv denied 94 NY2d 829 [1999]).[*2]
Defendant contends that the court failed to exercise itsdiscretion in denying defendant's request to speak to other counsel. Defendant previously madethat same request to the judge first assigned to his case, and the request was denied. Defendantthen renewed the request on the first day of trial, before a different judge, and he contends thatthe judge who presided over his trial mistakenly believed that he was bound by the prior rulingdenying his request. We reject that contention, inasmuch as "we do not read any of the languageemployed by the court as meaning it misapprehended or failed to exercise its discretion" indenying that request (People vQuinones, 74 AD3d 494, 494 [2010], lv denied 15 NY3d 808 [2010]). Finally,we reject defendant's contention that his sentence is unduly harsh and severe based on thedisparity between the sentence imposed after trial and the sentence offers made during pleanegotiations (see People v Smith, 21AD3d 1277, 1278 [2005], lv denied 7 NY3d 763 [2006]). Present—Centra,J.P., Peradotto, Carni, Lindley and Sconiers, JJ.