PEOPLE v. MILLER

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Kirk MILLER, Defendant-Appellant.

Decided: June 30, 2005

SAXE, J.P., ELLERIN, SWEENY, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant. Kirk Miller, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Lauren B. Cardonsky of counsel), for respondent.

Judgment, Supreme Court, New York County (Joan Sudolnik, J. at hearing;  Bruce Allen, J. at plea and sentence), rendered October 8, 2003, convicting defendant of criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 3 1/212 to 7 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] ).   It is undisputed that the police had probable cause to arrest defendant based on their observation that he had removed drugs from one of his bags and passed them to another person.   When defendant, after being arrested, asked the police to permit two civilians to take his bags, the police properly inspected the bags for their own safety and to prevent any possible loss or destruction of evidence (see People v. Wylie, 244 A.D.2d 247, 666 N.Y.S.2d 1 [1997], lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895 [1998] ), resulting in the discovery of drugs.   The record also supports the court's finding that money was recovered from defendant pursuant to his lawful arrest.

We perceive no basis for reducing the sentence.

The contentions raised in defendant's pro se supplemental brief are forfeited by the guilty plea and unavailing in any event.