| People v Fagan |
| 2015 NY Slip Op 09133 [134 AD3d 1232] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vFrederick A. Fagan, Appellant. |
Robert A. Gouldin, Oneonta, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered March 18, 2013, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the fourth degree.
In May 2012, a police investigator executing an eavesdropping warrant intercepted aphone call placed by defendant to a narcotics trafficking suspect. Defendant and thetrafficking suspect engaged in what the investigator understood to be a codedconversation in which the two agreed to meet at a barbershop in the City of Elmira,Chemung County so that defendant could purchase narcotics from the traffickingsuspect. The investigator relayed this information to an undercover officer, who in turnobserved the two men leave the barbershop together in defendant's car, briefly stop at thetrafficking suspect's home and then return to the barbershop, where defendant droppedoff the trafficking suspect. As defendant drove away, the investigator contacted a patrolofficer and advised that defendant was suspected of being in possession of narcotics. Thepatrol officer followed defendant's vehicle and, upon observing that the vehicle hadinoperable brake lights (see Vehicle and Traffic Law § 375 [40][b]), initiated a traffic stop. Meanwhile, the investigator intercepted another phone callfrom the trafficking suspect to defendant in which defendant stated that he was beingfollowed by the police and the trafficking suspect responded by advising defendant to"put it up, put it up." After activating his emergency lights, the officer observed thatdefendant "leaned over on his left leg . . . like he was lifting the right side ofhis body off the ground and his right arm . . . appeared to be going behindhis back or under his body." Defendant thereafter pulled his vehicle to the side of theroad. [*2]Defendant admitted to the officer that hisdriving privileges were suspended, and he was placed under arrest.
The officer permitted defendant to contact his girlfriend so that she could retrieve thevehicle. Upon her failure to arrive, the officer obtained defendant's consent to move thevehicle and to secure any valuable items that may be inside. While doing so, the officerobserved a pair of rubber gloves and an empty plastic baggie inside the vehicle.Defendant was then transported to the police station, where the officer conducted a stripsearch. Defendant removed his clothing but, according to the officer, refused to fullycomply when he was asked to bend over so as to permit a visual inspection of his analcavity. Defendant was then allowed to put some of his clothing back on while the officersummoned a lieutenant. The lieutenant engaged in a discussion with defendant;thereafter, defendant reached into his underwear and surrendered two plastic baggiescontaining cocaine to the police.
Following these events, defendant was charged in an indictment with criminalpossession of a controlled substance in the fourth degree stemming from the foregoingevents. Defendant moved to suppress the cocaine and, following a Mapp hearing,County Court denied the motion. Defendant then pleaded guilty to the crime as chargedand was sentenced, as a second felony drug offender, to a prison term of four yearsfollowed by two years of postrelease supervision. Defendant appeals.
Defendant argues that County Court erred in denying his motion to suppress thecocaine as it was recovered as the product of an unconstitutional search, and, further, thathis acquiescence in surrendering the drugs to police was rendered involuntary by policecoercion and overbearing. We disagree. In determining whether reasonable suspicionexists to conduct a strip search or visual body cavity search, police are permitted "to drawon their own experience and specialized training to make inferences from and deductionsabout the cumulative information available to them that might well elude an untrainedperson" (People v Hall, 10NY3d 303, 311 [2008] [internal quotation marks and citation omitted], certdenied 555 US 938 [2008]; accord People v Cogdell, 126 AD3d 1136, 1138 [2015],lv denied 25 NY3d 1200 [2015]). At the suppression hearing, the patrol officertestified that his decision to conduct the strip search was based upon the information thathe had received from the investigator regarding defendant's activities prior to the arrest,defendant's record of narcotics arrests, his own observations of defendant appearing toreach underneath his body, and the subsequent discovery of an empty plastic baggie andrubber gloves in defendant's vehicle—items he knew to be associated with drugtrafficking and the concealment of drugs in a body cavity. County Court's credibilitydeterminations are entitled to great weight in view of its superior position to observe thetestimony (see People v Prochilo, 41 NY2d 759, 761 [1977]; People vHurd, 279 AD2d 892, 895 [2001]), and we find no error in its finding that the stripsearch was sufficiently justified by the requisite "specific, articulable factual basissupporting a reasonable suspicion to believe [that defendant had] secreted evidenceinside a body cavity" (People v Hall, 10 NY3d at 311; see People vCogdell, 126 AD3d at 1138-1139; People v Hunter, 73 AD3d 1279, 1280 [2010]).
The lieutenant testified regarding his discussion with the defendant that ultimatelyled to defendant's relinquishment of the cocaine. In essence, he described that he advisedthat the next step the police would take, if defendant did not cooperate, would be toapply for a search warrant. This explanation did not rise to coercion (see People vYuruckso, 297 AD2d 299, 299-300 [2002]), nor does the record reveal thatdeception or trickery was employed that "was so fundamentally unfair as to deny dueprocess" (People v Tarsia, 50 NY2d 1, 11 [1980]; accord People v Wolfe, 103AD3d 1031, 1035 [2013] [internal quotation marks and citation omitted], lvdenied 21 NY3d 1021 [2013]). Notably, the record supports County Court's findingthat the promises made by the police in an attempt to induce defendant tocooperate—including that he would be released that evening—were kept.Accordingly, we find [*3]that defendant's decision tosurrender the cocaine to the police was not precipitated by unlawful police conduct orcoercion, and County Court correctly denied defendant's motion to suppress.
Finally, we reject defendant's contention that his sentence was harsh and excessive.At sentencing, defendant's counsel argued for a prison term of four years, which was theterm ultimately imposed by County Court. We further note that, as a second felony drugoffender, defendant faced a potential maximum sentence of eight years (see PenalLaw §§ 70.45 [2] [d]; 70.70 [3] [b] [ii]), and, in view of his criminalhistory, we discern no extraordinary circumstances warranting a modification of thesentence in the interest of justice (see People v Tetreault, 131 AD3d 1327, 1328 [2015];People v Charles, 258 AD2d 740, 740-741 [1999], lv denied 93 NY2d968 [1999]).
Peters, P.J., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.