PEOPLE v. SHACKLEFORD (2008)

Appeal by the defendant from a judgment of the County Court, Rockland County (Bartlett, J.), rendered August 8, 2006, convicting him of criminal possession of a controlled substance in the third degree (two counts), and criminally using drug paraphernalia in the second degree (two counts), upon his plea of guilty, and imposing sentence.  The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The resolution of issues of credibility made by a hearing court are entitled to great deference on appeal, and will not be disturbed unless they are “clearly unsupported by the record” (People v. Collier, 35 A.D.3d 628, 629, 826 N.Y.S.2d 894;  see People v. Diggs, 38 A.D.3d 565, 833 N.Y.S.2d 518;  People v. Ortiz, 31 A.D.3d 580, 817 N.Y.S.2d 671).  Contrary to the defendant's contention, the record in this case amply supports the hearing court's determination to credit police testimony, as well as the court's factual findings that the vehicle in which the defendant was riding as a passenger was lawfully stopped for a traffic infraction (see People v. Ellis, 62 N.Y.2d 393, 477 N.Y.S.2d 106, 465 N.E.2d 826;  People v. Phillips, 285 A.D.2d 477, 727 N.Y.S.2d 637;  People v. Alcide, 252 A.D.2d 591, 676 N.Y.S.2d 216).  Furthermore, the removal of the defendant from the vehicle in order to conduct a protective pat down was warranted due to the furtive movements the defendant repeatedly made with his hands in the vehicle, his failure to comply with a police officer's instructions to keep his hands in plain sight, and the facts, known to the police present at the scene, that he had been arrested less than two months prior to the stop for possessing a concealed and loaded firearm and that he was under investigation for his alleged involvement in a recent shooting (see People v. Robinson, 74 N.Y.2d 773, 545 N.Y.S.2d 90, 543 N.E.2d 733, cert. denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376;  People v. Sutherland, 40 A.D.3d 890, 891, 837 N.Y.S.2d 662;  People v. Phillips, 285 A.D.2d 477, 727 N.Y.S.2d 637).

 Additionally, the officers' actions in opening a bag that they discovered and removed from the defendant's jacket pocket during the pat down were also justified under the circumstances of this case.  Police Officer Joseph Brown, who ordered the defendant out of the vehicle and conducted the pat down, felt a heavy object in the defendant's right jacket pocket.  He could not ascertain what the object was, but, when he felt it through the defendant's jacket, he believed it to be a weapon.  Brown removed the bag from the defendant's pocket.  He testified that the object in the bag did not feel like a gun, “but you can't determine what it feels like.”  He subsequently testified that he felt a heavy, metal object in the bag, that he did not know what was in the bag, and that “[i]t could have been a weapon at the time.”  Since Brown could not rule out the possibility that the object was a weapon, he was justified in seizing it (see People v. Holmes, 36 A.D.3d 714, 716, 828 N.Y.S.2d 181;  People v. Johnson, 22 A.D.3d 371, 372, 802 N.Y.S.2d 444).  Brown handed the bag to Police Officer Francis Brook.  At that point, the bag was “[i]nches” away from the defendant.  Brown and Brook subsequently inspected the contents of the bag to determine whether it contained a weapon, and they observed a metal scale and a large white rock substance that appeared to be crack cocaine.  The officers' search of the bag within the defendant's grabbable reach was a proper safety precaution under the circumstances (see People v. Brooks, 65 N.Y.2d 1021, 1023, 494 N.Y.S.2d 103, 484 N.E.2d 132;  People v. Davis, 64 N.Y.2d 1143, 1144, 490 N.Y.S.2d 725, 480 N.E.2d 339;  People v. White, 156 A.D.2d 741, 742, 549 N.Y.S.2d 492;  People v. Covert, 134 A.D.2d 444, 444–445, 521 N.Y.S.2d 68;  People v. Tratch, 104 A.D.2d 503, 503–504, 479 N.Y.S.2d 250;  see also Matter of Marrhonda G., 81 N.Y.2d 942, 945, 597 N.Y.S.2d 662, 613 N.E.2d 568).

Further, we find that the reasonable basis for the officers to fear for their safety had not abated (cf. People v. Roth, 66 N.Y.2d 688, 690, 496 N.Y.S.2d 413, 487 N.E.2d 270;  People v. Brockington, 176 A.D.2d 743, 744, 574 N.Y.S.2d 814).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).