People v. Allen

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered June 17, 2005, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 3 Vs to 7 years, affirmed. The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). Just before midnight on December 1, 2004, in a deserted area near the West Side Highway and 125th Street, a New York Police Department anticrime team lawfully stopped a vehicle for a traffic violation. As one of the officers, a 15-year veteran of the 332 Department who had made over 500 arrests, approached the vehicle, he saw defendant, who was the passenger, and the other occupant of the car bend over and appear to pass something between them. Defendant then quickly put his hands in his pockets. In addition, he was visibly nervous in that his hand shook as he handed the officer his identification. This flurry of furtive, suspicious conduct gave the officer a reasonable suspicion that defendant might be concealing a weapon, thereby justifying a frisk (see e.g. People v Crespo, 292 AD2d 177 [2002], lv denied 98 NY2d 709 [2002]), notwithstanding any possible innocent explanations for defendant’s individual actions. During the patdown, the officer felt what appeared to be a quantity of pills in a bag (which is not a typical container for lawful medications). This observation, coupled with defendant’s suspicious behavior, provided, at the very least, the basis for a common-law inquiry (see e.g. People v Alvarez, 308 AD2d 184, 188 [2003], lv denied 3 NY3d 657 [2004]). When the officer asked what the object was, defendant replied that it was narcotics, and that response provided probable cause for defendant’s arrest. There is no merit to defendant’s argument that the officer was required to administer Miranda warnings before making that inquiry. While defendant may have been seized for Fourth Amendment purposes, he was not yet in custody for Miranda purposes (see Berkemer v McCarty, 468 US 420, 436-437 [1984]; People v Bennett, 70 NY2d 891 [1987]). Following defendant’s lawful arrest, the officer recovered the bag, and properly obtained other statements from him. Concur—Friedman, J.E, Marlow, Williams and Buckley, JJ.