| People v Anderson |
| 2013 NY Slip Op 01439 [104 AD3d 968] |
| March 7, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Brendon Anderson, Also Known as James,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Albany County(Breslin, J.), rendered April 15, 2011, upon a verdict convicting defendant of the crimesof criminal possession of a controlled substance in the first degree, criminal possessionof a controlled substance in the third degree (two counts), criminal possession of acontrolled substance in the fourth degree and criminal sale of a controlled substance inthe third degree, and (2) by permission, from an order of said court, entered August 15,2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgmentof conviction, without a hearing.
In May 2010, officers of the City of Albany Police Department conducted acontrolled buy operation in which a confidential informant (hereinafter CI) contacteddefendant to set up a cocaine sale in Albany. Police officers supplied the CI with buymoney and a transmitting device and monitored defendant and the CI throughout thetransaction, which took place while defendant was in a vehicle. Immediately thereafter,the CI turned narcotics over to the officers and informed them that defendant had a largequantity of cocaine in the vehicle. As defendant drove away from the scene, officerspulled him over for failure to signal, arrested him and, after a preliminary search of thevehicle, transported him and the vehicle to the police station. [*2]Defendant was strip-searched and found to have cocainehidden on his person; a search of the vehicle at the police station disclosed a hiddencompartment containing a large quantity of cocaine and the CI's buy money.
Defendant was charged with criminal possession of a controlled substance in the firstdegree, two counts of criminal possession of a controlled substance in the third degree,criminal possession of a controlled substance in the fourth degree, criminal sale of acontrolled substance in the third degree, and intimidating a witness in the third degree.Following a jury trial, he was acquitted of the intimidation charge, convicted of theremaining charges and sentenced to an aggregate prison term of 35 years. County Courtsubsequently denied defendant's motion to vacate the judgment of conviction(see CPL 440.10). Defendant appeals from the judgment and, by permission,from the order denying his posttrial motion.
We are unpersuaded by defendant's claim that County Court should have granted hismotion to suppress evidence. Initially, we disagree with defendant's contention that thecourt improperly based its determination that there was probable cause for his arrest onhearsay testimony regarding the claim of the CI—who did not testify at theMapp hearing—that defendant possessed drugs. Although the preliminaryroadside search of defendant's vehicle did not confirm the CI's statement, there wasindependent probable cause for defendant's arrest based upon the police officers'testimony that the CI was searched before the transaction to confirm that he possessed nonarcotics and was monitored throughout the transaction, that a trained officer observedthe transaction between defendant and the CI and believed it to be a drug deal, and thatthe CI provided narcotics to the officers immediately thereafter (see People v Rolle, 72 AD3d1393, 1395 [2010], lv denied 16 NY3d 745 [2011]; People v Folk, 44 AD3d1095, 1096 [2007], lv denied 9 NY3d 1006 [2007]; People v Roark, 29 AD3d1172, 1173 [2006], lv denied 7 NY3d 762 [2006]).
Further, there was probable cause for the warrantless search of defendant's vehicle. "'[W]hen the occupant of an automobile is arrested, the very circumstances that supplyprobable cause for the arrest may also give the police probable cause to believe that thevehicle contains contraband [or] evidence of the crime' " (People v Martin, 50 AD3d1169, 1170 [2008], quoting People v Blasich, 73 NY2d 673, 678 [1989]),provided there is a nexus between the arrest and the probable cause for the search(see People v Galak, 81 NY2d 463, 467 [1993]). Here, officers provided the CIwith buy money before the transaction and recorded the currency's serial numbers.Immediately after the transaction, an officer observed defendant counting currency in hisvehicle. Defendant did not exit the vehicle before police stopped him, and officerssearched the CI after the transaction and confirmed that he no longer had the buy moneythey had provided to him. These circumstances, in addition to the previously discussednarcotics evidence, furnished probable cause to believe that contraband was in thevehicle and " 'justifie[d] the search of every part of the vehicle and its contents that mayconceal the object of the search' " (People v Ellis, 62 NY2d 393, 398 [1984],quoting United States v Ross, 456 US 798, 825 [1982]; see People vLangen, 60 NY2d 170, 180 [1983], cert denied 465 US 1028 [1984];People v Dobere, 298 AD2d 770, 772 [2002]). The circumstances furtherprovided a "founded suspicion that criminality was afoot" authorizing a canine sniff ofthe vehicle (People vDevone, 15 NY3d 106, 113 [2010] [internal quotation marks omitted]), and theofficers' authority to search the vehicle was not altered by its removal from the roadsideto the police station (see People v Milerson, 51 NY2d 919, 921 [1980];People v Bacalocostantis, 121 AD2d 812, 815 [1986], lv denied 68NY2d 755 [1986]).[*3]
For similar reasons, we find no impropriety in thestrip search conducted at the police station following defendant's arrest. "[A] strip searchmust be founded on a reasonable suspicion that the arrestee is concealing evidenceunderneath clothing and the search must be conducted in a reasonable manner" (People v Hall, 10 NY3d303, 310-311 [2008], cert denied 555 US 938 [2008]; see People v Hunter, 73 AD3d1279, 1280 [2010]). Some of the factors that may be considered in determining thereasonableness of such a search are the circumstances of the arrest, the defendant'snervousness or unusual conduct, tips from informants, and "an itinerary suggestive ofwrongdoing" (People v Kelley, 306 AD2d 699, 700 [2003], lv denied 1NY3d 598 [2004]). Here, after officers observed what appeared to be a drug transactionbetween the CI and defendant, received narcotics from the CI and found no narcotics orbuy money in a preliminary vehicle search, defendant was taken to the police station,where he was described as "a little nervous." In the presence of three officers, defendantwas directed to remove one article of clothing at a time and hand it to the officers. Afterhe had removed all of his clothing, he was asked to bend over; when he did so, a bag fullof a substance that proved to be cocaine fell to the floor from between his buttocks.Based on the circumstances, we find that the search was both reasonably conducted andjustified by a reasonable suspicion that defendant possessed contraband (see People v Pierre, 8 AD3d904, 906 [2004], lv denied 3 NY3d 710 [2004]).
Contrary to defendant's claim, his attorney's failure to request a Dardenhearing did not deprive him of the effective assistance of counsel. Such a hearing iswarranted when the evidence is insufficient to establish probable cause other than thearresting officer's testimony regarding communications from an informer, and questionsas to the informer's identity are raised at the suppression hearing (see People vAdrion, 82 NY2d 628, 633-634 [1993]; People v Darden, 34 NY2d 177, 181[1974]). Here, as discussed above, there was sufficient evidence at the suppressionhearing to establish probable cause for defendant's arrest independent of the CI'sstatements.[FN*]Accordingly, no Darden hearing was required, and defense counsel's failure torequest such a hearing did not constitute a lack of meaningful representation (see People v Vargas, 72 AD3d1114, 1119 [2010], lv denied 15 NY3d 758 [2010]; People v Smith,301 AD2d 671, 673 [2003], lv denied 99 NY2d 658 [2003]).
Next, we reject defendant's request to reduce his sentence in the interest of justice.Defendant was sentenced upon five felony convictions as a second felony drug offenderwith a predicate violent felony (see Penal Law § 70.70 [1] [b]; [4] [a]) toconcurrent terms of 6, 10, 10 and 25 years and a consecutive term of 10 years, followedby postrelease supervision. All of these sentences were below the allowable maximums(see Penal Law §§ 70.70 [4] [b] [i], [ii]; 70.71 [4] [b] [i]). In view ofdefendant's lengthy criminal history, the significant quantity of drugs found in hispossession, and his complete failure to acknowledge responsibility for his actions, wefind no extraordinary circumstances or abuse of discretion warranting modification (see People v Sudler, 75 AD3d901, 906 [2010], lv denied 15 NY3d 956 [2010]; People v Carpenter, 51 AD3d1149, 1151 [2008], lv denied 11 NY3d 786 [2008]; People v Richardson, 28 AD3d1002, 1005 [2006], lv denied 7 NY3d 817 [2006]).
Finally, County Court properly denied defendant's motion to vacate his judgment ofconviction. Initially, contrary to defendant's claim, the People's failure to respond did notrequire [*4]the court to grant the motion (seeCPL 440.30 [1]; People vHoffler, 74 AD3d 1632, 1635 n 4 [2010], lv denied 17 NY3d 859[2011]). A motion to vacate a judgment must be denied if the judgment is "appealable. . . and sufficient facts appear on the record with respect to the ground orissue raised upon the motion to permit adequate review thereof upon such an appeal"(CPL 440.10 [2] [b]; see Peoplev Bruno, 97 AD3d 986, 986-987 [2012], lv denied 20 NY3d 931[2012]; People v Hillriegel,78 AD3d 1381, 1382 [2010]). Here, the issues raised on defendant'smotion—his counsel's failure to request a Darden hearing and CountyCourt's allegedly improper failure to grant his motion to suppress evidence—wereappealable, were based entirely on facts in the record, were in fact raised on direct appealand were found herein to be without merit (see People v Lagas, 49 AD3d 1025, 1026 [2008], lvdenied 10 NY3d 866 [2008]; People v Mullings, 23 AD3d 756, 759 [2005], lvdenied 6 NY3d 756 [2005]).
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *: The trial testimony ofthe CI later corroborated the sequence of events described by the police officers at thesuppression hearing.