PEOPLE v. HENDERSON (2018)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 24, 2015, convicting defendant, upon his plea of guilty, of two counts of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to concurrent terms of four years, unanimously affirmed.

The court properly denied defendant's suppression motion.  When the police handcuffed defendant upon entering an apartment to execute a search warrant, this did not constitute an arrest, and it did not require particularized suspicion because it was justified by the officers' reasonable interest in ensuring their safety and preventing any occupants from interfering with the search (see Bailey v. United States, 568 U.S. 186, 192–195, 133 S.Ct. 1031, 185 L.Ed.2d 19 [2013];  Muehler v. Mena, 544 U.S. 93, 98–99, 125 S.Ct. 1465, 161 L.Ed.2d 299 [2005];  People v. Jackson, 88 A.D.3d 451, 930 N.Y.S.2d 181 [1st Dept. 2011], lv denied 18 N.Y.3d 884, 939 N.Y.S.2d 754, 963 N.E.2d 131 [2012] ).

Shortly after detaining defendant, the police acquired probable cause to search and arrest him based on their reasonable belief, given the totality of the circumstances, that defendant had committed a narcotics-related crime (see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ).  The officers saw part of a plastic bag protruding from defendant's waistband.  The officers knew this type of bag was commonly used as drug packaging, and it appeared to have been hurriedly stuffed into defendant's underwear in an effort to conceal contraband.  Although defendant was not named in the search warrant, these observations, along with the common sense inferences to be drawn from his occupancy of a place of drug trafficking (see People v. Bundy, 90 N.Y.2d 918, 920, 663 N.Y.S.2d 837, 686 N.E.2d 496 [1997];  People v. Jackson, 44 A.D.3d 364, 845 N.Y.S.2d 224 [1st Dept. 2007], lv denied 9 N.Y.3d 991, 848 N.Y.S.2d 608, 878 N.E.2d 1024 [2007] ), provided probable cause to believe that defendant was a participant in the drug operation conducted out of the apartment.

Defendant's challenge to the voluntariness of his guilty plea is unpreserved, and we decline to review it in the interest of justice.  Because “defendant said nothing at the plea colloquy or sentencing proceeding that negated an element of the crime,” the narrow exception to the preservation rule does not apply (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).  Statements made during a presentence interview are not part of the actual sentencing proceeding and do not implicate Lopez (see e.g. People v. Rojas, 159 A.D.3d 468, 72 N.Y.S.3d 58 [1st Dept. 2018] ).  As an alternative holding, we find that there is no basis to vacate the plea, insofar as the court had no obligation to inquire about the statement in the presentence report, and, in any event, the allegedly exculpatory statement did not directly contradict, or cast doubt on, defendant's guilt.