PEOPLE v. RIVERA

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The PEOPLE of the State of New York, Respondent, v. Adam RIVERA, Defendant–Appellant.

Decided: February 16, 2017

RICHTER, J.P., MANZANET–DANIELS, GISCHE, WEBBER, KAHN, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Tomoeh Murakami Tse of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yan Slavinskiy of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J. at suppression hearing; Daniel P. FitzGerald, J. at plea and sentencing), rendered November 5, 2014, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of three years, unanimously affirmed.

The court properly denied defendant's suppression motion. Defendant's claim that his abandonment of the marijuana that initially prompted his arrest was in response to unlawful police activity is unpreserved because counsel did not raise that claim at the hearing, and the record does not establish that the court “expressly decided” this issue “in re[s]ponse to a protest by a party” (CPL 470.05[2]; see People v. Turriago, 90 N.Y.2d 77, 83–84 [1997]; People v. Colon, 46 AD3d 260, 263–264 [1st Dept 2007] ). We decline to review this unpreserved claim in the interest of justice. As an alternative holding, we reject it on the merits. Inasmuch as the sergeant had not engaged defendant in any way before defendant threw the marijuana to the ground, the sergeant's conduct did not constitute even a level one intrusion. Regardless of the sergeant's subjective intent, at the time defendant abandoned the marijuana, the police had not yet interfered with him in any way (see e.g. People v. Foster, 302 A.D.2d 403 [2d Dept 2003], lv denied 100 N.Y.2d 581 [2003]; People v. Sanchez, 248 A.D.2d 306, 307 [1998], lv denied 92 N.Y.2d 930 [1998]; see also People v. Thornton, 238 A.D.2d 33 [1st Dept 1998] ). In any event, the observation of defendant counting small objects in his hand in a drug-prone location provided, at least, an objective, credible reason to warrant a level one request for information, particularly given the well-known fact that “street-level drug sales typically involve small, easily concealable packages” (People v. Graham, 211 A.D.2d 55, 59 [1st Dept 1995], lv denied 86 N.Y.2d 795 [1995] ). Accordingly, there is no basis for finding that defendant's abandonment of the marijuana was prompted by any unlawful conduct by the police.

The stationhouse strip search that revealed a quantity of cocaine was based on reasonable suspicion that defendant was concealing evidence underneath his clothing, and the search was conducted in a reasonable manner (see People v. Hall, 10 NY3d 303, 310–311 [2008] ). The sergeant found a safety pin attached near the “pocket area” of defendant's pants, and was aware that drug dealers sometimes used safety pins to secure drugs inside their clothing. Additionally, the police encountered defendant in a drug-prone area, he answered evasively when asked where he lived, and his behavior while being patted down was suspiciously aggressive. The record does not support defendant's claim that the positioning of the pin was incompatible with using it to hide drugs. Given the totality of circumstances, the police had the requisite reasonable suspicion that defendant was using the safety pin to conceal drugs under his clothing.

We perceive no basis for reducing the sentence.