| People v Couch |
| 2013 NY Slip Op 02087 [104 AD3d 955] |
| March 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Couch, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Holdman, J.), rendered July 9, 2010, convicting him of assault in the second degree (twocounts), criminal possession of a controlled substance in the third degree, criminalpossession of a controlled substance in the seventh degree, and resisting arrest, upon hisplea of guilty, and imposing sentence. The appeal brings up for review the denial, after ahearing (Wetzel, J.), of that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Ordered that the judgment is affirmed.
At a suppression hearing, a police officer who was experienced and trained in streetlevel narcotics sales testified that he observed a hand-to-hand transaction in which a mantransferred money to the defendant, and the defendant transferred a watch to the man inan area known to have a high level of narcotics activity. The police officer was awarefrom his training that individuals involved in street level narcotics sales frequently useobjects to conceal the narcotics. As the police officer and his partner approached, theman threw the watch onto the ground and the defendant began to walk away. The policeofficer told the defendant to "come back," which he did. The police officer then askedthe defendant for identification, which the defendant provided. When the police officerthen asked the defendant if he had "anything on him that he wasn't supposed to have,"the defendant began to backpedal. The police officer then took one step toward thedefendant, and the defendant swung his right hand toward the police officer and wouldhave hit the officer with his hand if the officer had not blocked it. After a struggle, theofficers placed the defendant under arrest.
The County Court properly denied that branch of the defendant's motion which wasto suppress physical evidence seized incident to his arrest. Contrary to the defendant'scontention, the officers had a founded suspicion that criminality was afoot, triggering acommon-law right of inquiry when they initially approached the defendant (seePeople v Alvarez, 100 NY2d 549, 550 [2003]; People v De Bour, 40 NY2d210, 223 [1976]; People vBolta, 96 AD3d 773, 774 [2012]). Also contrary to the defendant's contention,under the circumstances of this case, neither the police officer's directive to "come back,"nor his subsequent taking of one step toward the defendant after the defendant startedbackpedaling, constituted a seizure or pursuit requiring reasonable suspicion (seePeople v [*2]Bora, 83 NY2d 531, 535-536 [1994];People v Shankle, 37 AD3d742, 743 [2007]; People v Foster, 302 AD2d 403, 404 [2003]). Thedefendant's subsequent action in swinging at the police officer gave the officers probablecause to arrest him. Skelos, J.P., Leventhal, Hall and Lott, JJ., concur.