| People v Loretta |
| 2013 NY Slip Op 04562 [107 AD3d 541] |
| June 18, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Delbart Loretta, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel),for respondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), renderedSeptember 23, 2010, convicting defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fifth degree, and sentencing him to aconditional discharge, unanimously affirmed.
The court properly denied defendant's suppression motion. In a drug-proneneighborhood, the arresting detective saw defendant place what appeared to be analuminum foil object, consistent with drug packaging, in his shirt pocket. With two otherofficers standing on either side of defendant, the detective approached defendant. As thedetective approached, but before any police action other than the approach itself,defendant acted in a nervous manner and appeared to be using his hand to block theofficers' view of the pocket in which he had placed the object. The detective tolddefendant to stop moving his hand and asked him "if he had anything illegal or what hehad in his pocket."
Contrary to defendant's contention, this police conduct constituted a level-twocommon-law inquiry, not a level-three seizure (see e.g. People v Jenkins, 209AD2d 164 [1st Dept 1994]), and it was justified by, at least, a founded suspicion ofcriminality. Defendant's response to the detective's inquiry led to probable cause fordefendant's arrest. The Court of Appeals' decision in People v Garcia (20 NY3d 317 [2012]) does not dictate adifferent result. In Garcia defendant's vehicle was pulled over because of adefective brake light. Aside from the faulty light, there was no indication of criminalityby the occupants of the car; they merely appeared nervous and acted "furtive[ly]" by"stiffen[ing] up" and "looking behind" upon being pulled over (id. at 320). TheCourt of Appeals agreed with this Court that a defendant's nervousness, without more, isnot enough to give rise to a founded suspicion of criminality that allows for acommon-law inquiry. Here, however, apart from seeming nervous, defendant wasobserved in a drug-prone neighborhood pulling what appeared to be an aluminum foilpacket out of his pocket. The arresting officer suspected that the aluminum foil containedcocaine because cocaine is often packaged in that manner. And, unlike Garcia,where the alleged "furtive" behavior was consistent with nervousness over being pulledover, here, defendant's attempt to block the [*2]officers'view of the shirt pocket in which he had placed the aluminum packet was consistent withsomeone in possession of a controlled substance attempting to avoid apprehension. Thesecircumstances were sufficient to give the police the requisite founded suspicion toapproach and question defendant. Concur—Mazzarelli, J.P., Acosta, Renwick,Richter and Gische, JJ.