| People v Jones |
| 2017 NY Slip Op 08557 [156 AD3d 960] |
| December 7, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rahiem Jones, Appellant. |
G. Scott Walling, Slingerlands, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered March 28,2016 in Albany County, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
On June 3, 2015, at approximately 1:30 a.m., police officers stopped defendant, who waswalking in the street, after observing him engage in a drug transaction. Defendant was patteddown and a loaded handgun was found on him. Defendant was subsequently charged in anindictment with criminal possession of a weapon in the second degree in connection with thisincident. Following a suppression hearing, Supreme Court denied defendant's motion to suppress,among other things, the seized handgun. Defendant thereafter pleaded guilty to attemptedcriminal possession of a weapon in the second degree and waived his right to appeal except withrespect to the denial of his suppression motion. In accordance with the terms of the guilty plea,Supreme Court sentenced defendant, as a second violent felony offender, to a prison term of sixyears, followed by five years of postrelease supervision. Defendant appeals. We affirm.
A police officer may approach an individual and request basic information from theindividual in a nonthreatening manner so long as the officer has an objective, credible reason notnecessarily indicative of criminality (see People v Hollman, 79 NY2d 181, 184 [1992];People v Story, 81 AD3d 1168,1168 [2011]; People v Hill, 30AD3d 687, 687 [2006]). The common-law right of inquiry by a police officer—agreater level of intrusion than the request for basic information—is permitted when thereis a founded suspicion that criminality is afoot (see People [*2]v Garcia, 20 NY3d317, 322 [2012]; People v Hollman, 79 NY2d at 184-185; People v Savage, 59 AD3d 817,820 [2009], lv denied 12 NY3d 920 [2009]). "[W]e accord great weight to thesuppression court's factual findings that are supported by the record" (People v Morris, 105 AD3d 1075,1077 [2013], lv denied 22 NY3d 1042 [2013]).
We conclude that the police officers had an objective, credible reason to initially requestbasic information from defendant. At the suppression hearing, the People primarily relied on thetestimony of two police officers. One officer testified that, while in an area known for narcoticstrafficking, he observed defendant "abruptly change[ ] his course of direction" once defendantsaw the marked patrol car. After the patrol car passed him, defendant turned around for a secondtime and continued walking in his original direction. The other officer testified that he sawdefendant approach a person, who was known as a drug dealer, and that he saw a "quickmovement of the hand" between them. Based upon his training and experience, the officerbelieved this was a hand-to-hand drug transaction. The officers then approached defendant andasked for identification. Under these circumstances, we find that the police officers' initialinquiry was justified (see People v Story, 81 AD3d at 1168; People v Wyatt, 14 AD3d 441, 441[2005], lv denied 4 NY3d 837 [2005]; People v Bailey, 204 AD2d 751, 753[1994]).
We further conclude that the police officers had a founded suspicion of criminal activity forthe level two intrusion. The officer testified that, after asking defendant for identification,defendant appeared "extremely nervous" and "start[ed] to shake." He then asked defendant if itwould be okay to pat him down, to which defendant responded, "[Y]es, sir." The officer patteddefendant down and discovered a handgun. In view of this and taking into account the officers'observations of the drug transaction, the record supports Supreme Court's determination that theofficers' actions were proper (see Peoplev Sylvain, 33 AD3d 330, 331 [2006], lv denied 7 NY3d 904 [2006]; People vWilliams, 300 AD2d 684, 685 [2002], lv denied 99 NY2d 654 [2003]; see generally People v Simmons, 30NY3d 957, 958 [2017]). Given the officers' founded suspicion, we also find that the requestto search defendant, which defendant consented to, was proper (see People v Oldacre, 53 AD3d675, 676-677 [2008]). To the extent that defendant testified to the contrary at thesuppression hearing, we defer to Supreme Court's factual findings and credibility determinations(see People v Portelli, 116 AD3d1163, 1164 [2014]; People v Morris, 105 AD3d at 1077). Accordingly, we find noerror in the denial of defendant's motion to suppress.
Peters, P.J., Garry and Mulvey, JJ., concur. Ordered that the judgment is affirmed.