| People v Rivera |
| 2017 NY Slip Op 01283 [147 AD3d 563] |
| February 16, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Adam Rivera, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Tomoeh Murakami Tseof counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yan Slavinskiy of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J., at suppressionhearing; Daniel P. FitzGerald, J., at plea and sentencing), rendered November 5, 2014, convictingdefendant of criminal possession of a controlled substance in the third degree, and sentencinghim, as a second felony drug offender, to a term of three years, unanimously affirmed.
The court properly denied defendant's suppression motion. Defendant's claim that hisabandonment of the marijuana that initially prompted his arrest was in response to unlawfulpolice activity is unpreserved because counsel did not raise that claim at the hearing, and therecord does not establish that the court "expressly decided" this issue "in re[s]ponse to a protestby a party" (CPL 470.05 [2]; see People v Turriago, 90 NY2d 77, 83-84 [1997]; People v Colon, 46 AD3d 260,263-264 [1st Dept 2007]). We decline to review this unpreserved claim in the interest of justice.As an alternative holding, we reject it on the merits. Inasmuch as the sergeant had not engageddefendant in any way before defendant threw the marijuana to the ground, the sergeant's conductdid not constitute even a level one intrusion. Regardless of the sergeant's subjective intent, at thetime defendant abandoned the marijuana, the police had not yet interfered with him in any way(see e.g. People v Foster, 302 AD2d 403 [2d Dept 2003], lv denied 100 NY2d581 [2003]; People v Sanchez, 248 AD2d 306, 307 [1998], lv denied 92 NY2d930 [1998]; see also People v Thornton, 238 AD2d 33 [1st Dept 1998]). In any event, theobservation of defendant counting small objects in his hand in a drug-prone location provided, atleast, an objective, credible reason to warrant a level one request for information, particularlygiven the well-known fact that "street-level drug sales typically involve small, easily concealablepackages" (People v Graham, 211 AD2d 55, 59 [1st Dept 1995], lv denied 86NY2d 795 [1995]). Accordingly, there is no basis for finding that defendant's abandonment ofthe marijuana was prompted by any unlawful conduct by the police.
The stationhouse strip search that revealed a quantity of cocaine was based on reasonablesuspicion that defendant was concealing evidence underneath his clothing, and the search wasconducted in a reasonable manner (seePeople v Hall, 10 NY3d 303, 310-311 [2008]). The sergeant found a safety pin attachednear the "pocket area" of defendant's pants, and was aware that drug dealers sometimes usedsafety pins to secure drugs inside their clothing. Additionally, the police encountered defendantin a drug-prone area, he answered evasively when asked where he lived, and his behavior whilebeing patted down was suspiciously aggressive. The record does not support defendant's claimthat the positioning of the pin was incompatible with using it to [*2]hide drugs. Given the totality of circumstances, the police had therequisite reasonable suspicion that defendant was using the safety pin to conceal drugs under hisclothing.
We perceive no basis for reducing the sentence. Concur—Richter, J.P.,Manzanet-Daniels, Gische, Webber and Kahn, JJ.