| People v Donald R. |
| 2015 NY Slip Op 03283 [127 AD3d 575] |
| April 21, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Donald R., Appellant. |
Scott A. Rosenberg, The Legal Aid Society, New York (Jonathan Garelick ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lawrence Marks, J., at hearing;Gregory Carro, J., at plea and sentencing), rendered December 1, 2010, convictingdefendant of criminal possession of a controlled substance in the fifth degree,adjudicating him a youthful offender, and sentencing him to a conditional discharge,unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis fordisturbing the court's credibility determinations.
After seeing defendant remain in the vestibule of a public housing building for morethan five minutes, with no circumstances explaining his presence, the police possessed anobjective, credible reason to ask him whether he lived there or "had business" there (see People v Wighfall, 55AD3d 347 [1st Dept 2008], lv denied 11 NY3d 931 [2009]). Whendefendant responded only that he was from Queens, with no indication that he was aresident or the guest of a resident, the police possessed, at the very least, foundedsuspicion of criminality, i.e., trespassing (see id.). Accordingly, their request thatdefendant step outside the vestibule so that they could talk to him was justified, and theencounter was not elevated to a seizure (see e.g. People v Francois, 61 AD3d524, 525 [1st Dept 2009], affd 14 NY3d 732 [2010]).
When defendant suddenly reached into his jacket pocket, the officer acted reasonablyin grabbing defendant's hand, which was found to contain drugs. This effort "to preventdefendant from possibly drawing a weapon" was a "minimal self-protective measure" (People v Wyatt, 14 AD3d441, 441-442 [1st Dept 2005], lv denied 4 NY3d 837 [2005]).
We have considered and rejected defendant's remaining arguments.Concur—Tom, J.P., Friedman, Renwick, Moskowitz and DeGrasse, JJ.