| People v Daniels |
| 2013 NY Slip Op 00815 [103 AD3d 1204] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CoryD. Daniels, Also Known as Cory Desmond-Lamar Daniels,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered April 14, 2009. The judgment convicted defendant, upon his pleaof guilty, of criminal possession of a controlled substance in the third degree andcriminal possession of a controlled substance in the fifth degree.
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 ofcriminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]) and criminal possession of a controlled substance in the fifth degree (§220.06 [5]), defendant contends that Supreme Court erred in refusing to suppress cocainefound on his person. Defendant correctly concedes that the police lawfully stopped thevehicle in which he was a passenger based on a traffic infraction committed by thedriver, and defendant also acknowledges that the arresting officer lawfully ordered himto exit the vehicle after the stop. Defendant contends, however, that the cocaine shouldhave been suppressed because the officer unlawfully conducted a pat frisk, whichresulted in the seizure of the drugs from his pants pocket. We reject that contention.
It is well settled that "police officers may frisk passengers in a lawfully stoppedvehicle to the extent necessary to guard their safety, provided that they act on reasonablesuspicion that criminal activity is afoot and on an articulable basis to fear for [their] ownsafety" (People v Goodson,85 AD3d 1569, 1570 [2011], lv denied 17 NY3d 953 [2011] [internalquotation marks omitted]). Here, the arresting officer observed defendant at a bus stopengage in a number of "handshakes" that, based on the officer's training and experience,were either hand-to-hand drug transactions or gang signals. The officer was observingthe bus stop area because armed robberies, drug transactions, and gang activity had beenrecently reported to have occurred in that vicinity. According to the officer, whendefendant appeared to notice the officer, defendant attempted to hide himself from theofficer's view. After about 40 minutes of such surveillance, the officer saw defendantenter a passenger seat of a black SUV-type vehicle, and the driver of the vehicle thenmade an illegal turn when leaving the scene. The officer thus stopped the vehicle for thetraffic infraction and, while approaching the rear of the stopped vehicle, he noticeddefendant [*2]moving in such a way that he appeared tobe either removing something from or placing something into one of his pants pockets.That observation, together with the officer's earlier observations, reasonably caused himto fear for his safety (see Peoplev Grant, 83 AD3d 862, 863-864 [2011], lv denied 17 NY3d 795 [2011];see also People vShackleford, 57 AD3d 578, 578-579 [2008], lv denied 12 NY3d 762[2009]). The officer ordered defendant out of the vehicle and, during a pat frisk ofdefendant for weapons, the officer felt a hard object in defendant's pocket that he thoughtmight be a firearm, but he could not be sure. We conclude under the circumstances ofthis case that the officer was authorized to "reach[ ] into defendant's pocket[ ] to makethat determination" (People vWallace, 41 AD3d 1223, 1224 [2007], lv denied 9 NY3d 883 [2007];see People v Martinez, 39AD3d 1159, 1160 [2007], lv denied 9 NY3d 867 [2007]; People v Howard, 2 AD3d1323, 1324 [2003], lv denied 2 NY3d 800 [2004]). Before reaching into thepocket, however, the officer asked defendant what the hard object was; defendant'sanswers were initially evasive, but ultimately he responded, "drugs." That response gavethe officer reason to believe that defendant possessed contraband, authorizing a search ofthe pocket that resulted in the lawful seizure of the cocaine (see People v Eure, 46 AD3d386, 387 [2007], lv denied 10 NY3d 810 [2008]). Present—Scudder,P.J., Centra, Carni, Lindley and Sconiers, JJ.