PEOPLE v. FABIAN (2008)

Judgment, Supreme Court, New York County (Renee A. White, J. at hearing;  Ronald A. Zweibel, J. at plea and sentence), rendered November 22, 2006, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him to a term of 5 years' probation, unanimously affirmed.

The court properly denied defendant's suppression motion.   In the late evening, in a drug-prone location, a detective in civilian clothes in an unmarked car observed activity that he recognized as a possible drug transaction, in which defendant made hand-to-hand contact with another person.   When the detective and his partner approached, defendant behaved in a nervous manner warranting a reasonable inference that he realized he was in the presence of the police and was trying to change direction to avoid them.   Defendant refused to respond to the detective's repeated inquiries and walked away, and then raised to his mouth the same hand he used in the apparent hand-to-hand transaction, thus suggesting a possible attempt to destroy evidence by swallowing it.   While each of these events, viewed separately, might be susceptible of innocent interpretation, when viewed collectively they at least provided sufficient reasonable suspicion to warrant physical restraint of defendant (see People v. Oeller, 191 A.D.2d 355, 595 N.Y.S.2d 192 [1993], affd. 82 N.Y.2d 774, 604 N.Y.S.2d 537, 624 N.E.2d 674 [1993] ), which resulted in the officers' observation of an apparent drug package in defendant's mouth.