PEOPLE v. BALLARD (2008)

Judgments, Supreme Court, New York County (Lewis Bart Stone, J. at suppression hearing;  Robert M. Stolz, J. at pleas and sentence), rendered June 11, 2007, as amended September 19, 2007, convicting defendant of criminal sale of a controlled substance in the fourth and fifth degrees, and sentencing her, as a second felony drug offender, to an aggregate term of 3 years, unanimously 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 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).  In this observation sale case, defendant concedes that there was reasonable suspicion warranting her detention, but argues that the police use of handcuffs elevated the encounter to an arrest, and that probable cause to arrest did not develop until the observing officer made a confirmatory identification.  However, the hearing evidence, viewed as a whole, supports the conclusion that defendant was not handcuffed until after the confirmatory identification, notwithstanding some evidence to the contrary.  In any event, the record also supports the hearing court's alternate finding that there was probable cause even before the identification (see e.g. People v. Martinez, 289 A.D.2d 125, 735 N.Y.S.2d 502 [2001], lv. denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615 [2002];  People v. Genyard, 276 A.D.2d 299, 714 N.Y.S.2d 32 [2000], lv. denied 95 N.Y.2d 963, 722 N.Y.S.2d 481, 745 N.E.2d 401 [2000] ).

 Shortly after the arrest, an experienced narcotics officer observed a clear plastic bag containing what he immediately recognized to be cocaine on the console of defendant's van.  Accordingly, seizure of the drugs was justified by application of the plain view doctrine (see People v. Batista, 261 A.D.2d 218, 690 N.Y.S.2d 536 [1999], lv. denied 94 N.Y.2d 819, 702 N.Y.S.2d 589, 724 N.E.2d 381 [1999] ).  Defendant's argument that the hearing court employed the wrong standard with regard to the plain view issue is unpreserved and without merit.

We perceive no basis for reducing the sentence.