PEOPLE v. NESBITT (2008)

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered December 17, 2007, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

The police received a call from a citizen informant that two individuals were involved in drug activity at 59 Henry Street in the City of Kingston, Ulster County.  Police officer Eric Van Allen and his partner responded to that address, located in an area known for narcotics dealing and gang activity, and approached defendant and another individual who were standing in front and who matched the description given the officers.  As he got within 10 feet of the two individuals, Van Allen observed a pocket knife clipped to defendant's pants pocket.  Van Allen then conducted a pat-down frisk of defendant and took possession of the knife.  As he continued the pat-down search, Van Allen felt a bulge in defendant's sock.  At that point defendant admitted that he was carrying marihuana and Van Allen subsequently removed multiple bags of marihuana from the sock and placed defendant under arrest.  Defendant was then taken to police headquarters where Van Allen inquired if there was anything else he should be made aware of on defendant's person.  Defendant then admitted to carrying additional amounts of marihuana in his shoe and having other controlled substances, later determined to be cocaine, down his pants.

Defendant was thereafter indicted for the crimes of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and loitering in the first degree.  Following the denial of defendant's suppression motion, defendant pleaded guilty to criminal possession of a controlled substance in the third degree in full satisfaction of the charges.  Defendant was thereafter sentenced to a four-year term of imprisonment, with 1 1/212 years of postrelease supervision.

 On appeal, defendant challenges County Court's suppression ruling, initially arguing that he was stopped and detained by the police illegally and that the evidence seized during the pat-down frisk was the product of an unlawful arrest.  We disagree.  When a police officer has a reasonable suspicion that a person has committed, is committing or is about to commit a crime, he or she is authorized to make a forcible stop and detain such person (see People v. Cantor, 36 N.Y.2d 106, 112, 365 N.Y.S.2d 509, 324 N.E.2d 872 [1975];  People v. Dorney, 35 A.D.3d 1032, 825 N.Y.S.2d 590 [2006], lv. denied 8 N.Y.3d 921, 834 N.Y.S.2d 512, 866 N.E.2d 458 [2007];  People v. Roots, 13 A.D.3d 886, 887, 788 N.Y.S.2d 186 [2004], lvs. denied 4 N.Y.3d 890, 891, 798 N.Y.S.2d 735, 736, 831 N.E.2d 980, 981 [2005] ).  “To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” (People v. Cantor, 36 N.Y.2d at 112, 365 N.Y.S.2d 509, 324 N.E.2d 872;  see Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968];  People v. Williams, 305 A.D.2d 804, 806, 759 N.Y.S.2d 580 [2003] ).  Here, as defendant matched the description given by the citizen informant and was observed at the scene of the reported crime—an area known for drug trafficking—within minutes of the informant's call to the police, Van Allen's initial detention of him was based upon a reasonable suspicion supported by “articulable facts, credible objective evidence, and the rational inferences that flow therefrom” (People v. Hicks, 68 N.Y.2d 234, 243, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986];  accord People v. Buchta, 182 A.D.2d 853, 853, 581 N.Y.S.2d 923 [1992], lv. denied 80 N.Y.2d 829, 587 N.Y.S.2d 913, 600 N.E.2d 640 [1992];  see People v. Bailey, 259 A.D.2d 779, 780, 687 N.Y.S.2d 738 [1999];  People v. Shakur, 233 A.D.2d 793, 795, 650 N.Y.S.2d 388 [1996], lv. denied 89 N.Y.2d 1041, 659 N.Y.S.2d 872, 681 N.E.2d 1319 [1997];  People v. Buyce, 152 A.D.2d 857, 858–859, 544 N.Y.S.2d 67 [1989], lv. denied 74 N.Y.2d 845, 546 N.Y.S.2d 1010, 546 N.E.2d 193 [1989] ).

 In effectuating a stop based upon a reasonable suspicion of criminal behavior, “the officer is authorized to frisk the person if the officer reasonably believes that he or she is in danger of physical injury” (People v. Schwing, 14 A.D.3d 867, 868, 787 N.Y.S.2d 715 [2005];  see CPL 140.50[1], [3];  People v. Williams, 305 A.D.2d at 806, 759 N.Y.S.2d 580). As defendant was observed with a pocket knife clipped to his pants, we find that the pat down of defendant in search of other weapons was justified to protect Van Allen's safety (see People v. Buckmon, 199 A.D.2d 620, 621, 605 N.Y.S.2d 129 [1993], lv. denied 83 N.Y.2d 803, 611 N.Y.S.2d 139, 633 N.E.2d 494 [1994];  see generally Terry v. Ohio, 392 U.S. 1 at 27, 88 S.Ct. 1868).  Defendant's subsequent admission that he possessed marihuana upon Van Allen's discovery of the bulge in defendant's sock during the pat down provided probable cause for his arrest (see People v. Smith, 275 A.D.2d 687, 687, 713 N.Y.S.2d 347 [2000], lv. denied 95 N.Y.2d 938, 721 N.Y.S.2d 615, 744 N.E.2d 151 [2000] ).

 Defendant also contends that the admissions he made at police headquarters before being searched concerning the marihuana in his shoe and the cocaine in his pants, as well as the drugs found on him, should have been suppressed as they were the result of an investigatory interrogation without the proper Miranda warnings.  Clearly, police officers are authorized to search a defendant incident to his or her lawful arrest (see People v. Ruppert, 42 A.D.3d 817, 818, 839 N.Y.S.2d 866 [2007], lv. denied 9 N.Y.3d 964, 848 N.Y.S.2d 33, 878 N.E.2d 617 [2007];  People v. Ormsby, 30 A.D.3d 757, 758, 816 N.Y.S.2d 623 [2006], lv. denied 7 N.Y.3d 816, 822 N.Y.S.2d 491, 855 N.E.2d 807 [2006] ).  According to the testimony of Van Allen, deemed credible by County Court, defendant admitted to possessing the drugs in response to Van Allen's routine inquiry if there was anything he should be aware of prior to conducting a search of defendant's person as part of processing him pursuant to his arrest.  As the record supports a finding that Van Allen's inquiry was part of the normal utterances attendant to a search of an individual under arrest and defendant's response was voluntary and not the product of an investigatory interrogation (see People v. Burgess, 241 A.D.2d 765, 767, 661 N.Y.S.2d 70 [1997], lv. denied 91 N.Y.2d 870, 668 N.Y.S.2d 568, 691 N.E.2d 640 [1997] ), we find no basis to disturb County Court's determination that suppression of the evidence was unwarranted (see People v. Phillips, 46 A.D.3d 1021, 1022, 847 N.Y.S.2d 688 [2007], lv. denied 10 N.Y.3d 815, 857 N.Y.S.2d 48, 886 N.E.2d 813 [2008];  People v. Gutkaiss, 206 A.D.2d 628, 629–630, 614 N.Y.S.2d 599 [1994], lv. denied 84 N.Y.2d 936, 621 N.Y.S.2d 533, 645 N.E.2d 1233 [1994] ).

ORDERED that the judgment is affirmed.

CARPINELLO, J.

CARDONA, P.J., PETERS, KAVANAGH and STEIN, JJ., concur.