| People v Smalls |
| 2013 NY Slip Op 07866 [111 AD3d 582] |
| November 26, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William Smalls, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J., at hearing; DanielMcCullough, J., at jury trial and sentencing), rendered June 20, 2011, convictingdefendant of criminal possession of a controlled substance in the third degree, andsentencing him to a term of one year, unanimously affirmed.
The hearing court properly denied defendant's suppression motion. At a drug-proneintersection, experienced narcotics officers saw an illegally parked car, in whichdefendant and his passenger were making movements suggesting that something wasbeing transferred. They then saw defendant close a clear plastic bag with his mouth, getout of the car while holding the bag, open the hood of the car, reach into the engine areaand return to the car without the bag. Based on those observations, the police hadreasonable suspicion that defendant had engaged in criminal activity, most likely a drugtransaction (see e.g. People vGarcia, 96 AD3d 481 [1st Dept 2012], lv denied 19 NY3d 1025[2012]). In particular, it was highly suspicious for defendant to apparently secrete a bagunder the hood of the car. This behavior was inconsistent with innocent explanations,such as repairing the car. Accordingly, the police conducted a lawful stop for the purposeof investigating criminal activity, and they properly detained and questioned defendantand the passenger.
From outside the car, an officer saw a large pill bottle on the passenger's lap. Whenthe passenger tried to hide the bottle, the officer reached into the car and grabbed thebottle. For the first time on appeal, defendant asserts that the officer had no right to seizethe bottle, and that subsequent questioning was the fruit of that seizure. Although therewas some discussion of the seizure of the bottle in the court's decision, the court did not"expressly decide[ ]" the issue "in response to a protest by a party" (CPL 470.05 [2];see People v Turriago, 90 NY2d 77, 83-84 [1997]; People v Colon, 46 AD3d260, 263 [1st Dept 2007]). Accordingly, this issue is unpreserved and we decline toreview it in the interest of justice.
As an alternative holding, we find that, in addition to being a very limited intrusion,the seizure of the bottle was permissible under the automobile exception because, at thatpoint, the police had probable cause to believe that the car contained evidence of an illicitdrug exchange, [*2]and were thus authorized to conduct awarrantless search of the car and any containers it contained (see generally People vYancy, 86 NY2d 239, 245-246 [1995]). When the passenger tried to hide the pillbottle, his actions indicated that the bottle was incriminating. When this display ofconsciousness of guilt was added to the behavior by defendant and the passenger alreadyobserved by the police, it became obvious that there had just been an illicit transactioninvolving prescription medication, thereby creating probable cause (see e.g. People v O'Kane, 55 AD3d315 [1st Dept 2008], lv denied 11 NY3d 928 [2009]).
Contrary to defendant's argument, the hearing court made no express or impliedfinding that the level of suspicion had not yet ripened into probable cause at the pointwhen the bottle was seized. Any lack of clarity in the record, in the People's position atthe hearing, or in the ruling the court delivered orally immediately after the hearing, canbe attributed to defendant's failure to litigate the particular issue (see People v Calderon, 92AD3d 606 [1st Dept 2012], lv denied 19 NY3d 958 [2012]).
As noted, the police did not immediately search the car, but only conducted a limitedintrusion by picking up the bottle and examining the label. The officer saw that the pillshad been dispensed that day, but that the bottle was empty. Upon further questioning,defendant and the passenger gave evasive or incredible answers that confirmed policesuspicion that defendant had unlawfully obtained prescription medication from thepassenger and secreted it under the hood, and provided further support for a search underthe automobile exception. We note that, regardless of the legality of the seizure of the pillbottle, some of the questions posed to defendant and the passenger had nothing to dowith the bottle, and the responses to those questions, standing alone, raised the level ofsuspicion to probable cause. In particular, defendant told the officer that he had not putanything under the hood, which was contrary to the officer's own observations.
Since nothing in the trial court's supplemental jury instructions can be viewed asexpressly shifting the burden of proof, normal preservation requirements apply (seePeople v Thomas, 50 NY2d 467, 471-472 [1980]). We conclude that defendant didnot preserve his present argument (see People v Whalen, 59 NY2d 273, 280[1983]), and we decline to review it in the interest of justice. As an alternative holding,we find that an errant phrase in the supplemental charge could not have misled the jury asto the burden of proof (seePeople v Umali, 10 NY3d 417, 426-427 [2008]).
The portion of the prosecutor's summation to which defendant objected asspeculation was a permissible record-based argument. Defendant's remaining challengesto the prosecutor's summation and the court's supplemental instructions are unpreservedand we decline to review them in the interest of justice. As an alternative holding, wealso reject them on the merits. Concur—Friedman, J.P., Renwick, Freedman andFeinman, JJ.