PEOPLE v. BOLDEN (2006)

Judgment, Supreme Court, New York County (Arlene Silverman, J.), rendered November 15, 2004, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

 The court properly denied defendant's suppression motion.   As defendant concedes, the officer conducted a proper level-one request for information because defendant and his companion were carrying heavy-looking garbage bags at 2:30 A.M. When defendant's companion evinced a consciousness of guilt by spontaneously assuming the “spread eagle” or “frisk” position even before the officer, who was exiting his unmarked car, had said anything (see People v. Wigfall, 295 A.D.2d 222, 744 N.Y.S.2d 373 [2002], lv. denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579 [2002] ), and when defendant and his companion gave illogical and implausible answers to the officer's questions, this created a founded suspicion on the officer's part that criminal activity was afoot, entitling him to exercise the common-law right of inquiry by asking to look inside the bags (see People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976];  People v. Ward, 22 A.D.3d 368, 802 N.Y.S.2d 166 [2005], lv. denied 6 N.Y.3d 782, 811 N.Y.S.2d 349, 844 N.E.2d 804 [2006];  People v. McPherson, 286 A.D.2d 616, 730 N.Y.S.2d 315 [2001], lv. denied 97 N.Y.2d 685, 738 N.Y.S.2d 300, 764 N.E.2d 404 [2001] ).

The challenged portions of the prosecutor's cross-examination of defendant were generally within the bounds of permissible advocacy, and contained nothing that was so egregious as to deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 136, 142, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).