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

The PEOPLE of the State of New York, Respondent, v. Jonathan D. MUNIZ, Appellant.

Decided: November 24, 2004

Before:  SPAIN, J.P., CARPINELLO, MUGGLIN, ROSE and KANE, JJ. Charles E. Inman, Public Defender, Hudson (Jessica D. Howser of counsel), for appellant. Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.

Appeal from a judgment of the County Court of Columbia County (Leaman, J.), rendered August 21, 2002, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant was the passenger in a truck being driven by Louis Padilla.   A police officer pulled the truck over because it was traveling at almost twice the speed limit.   Neither defendant nor Padilla could produce any form of identification, but they both provided names and dates of birth and proffered a registration for the vehicle in the name of a third person.   Defendant knew only the first name of the registered owner.   When the officer attempted to verify their identities, the dispatcher informed him that Padilla had an extensive felony history including robberies and weapons possession, had an outstanding arrest warrant, and his license was suspended.   A check of the name and date of birth provided by defendant revealed that there was a valid license issued in that name and that person had no outstanding arrest warrants.   According to standard procedure based on Padilla's outstanding warrant, dispatch sent backup to assist the officer.

The officer arrested Padilla on the warrant and took him into custody.   The first two backup officers to arrive noticed that defendant, still seated in the truck, was fidgeting, leaning over, moving his torso and arms, and appeared preoccupied with something in the truck.   One officer approached the passenger door and asked defendant for identification.   Based on defendant's actions in reaching around in the truck with his hands out of the officer's sight, plus the officer's detection of the odor of marihuana, the officer ordered defendant out of the vehicle.   The other backup officer commenced a pat-down frisk, but could not feel anything because of defendant's puffy down vest.   At the officer's direction, defendant removed the vest and the officer continued the frisk.   Upon patting defendant's left leg and slightly raising the pant leg to check for weapons in defendant's boot, a bag fell out of the right leg of defendant's pants, which had not yet been frisked.   The bag contained what appeared to be, and ultimately tested positive as, cocaine.   Defendant was arrested and charged with criminal possession of a controlled substance in the third degree.   Following County Court's denial of defendant's suppression motion, he pleaded guilty and the court sentenced him to a term of 2 to 6 years in prison.   We affirm.

 County Court properly denied defendant's motion to suppress the cocaine.   Factual determinations of the suppression court are entitled to great weight and will not be overturned unless clearly contrary to the evidence, taking into consideration the court's credibility determinations (see People v. Burns, 281 A.D.2d 704, 705 [2001], lvs. denied 96 N.Y.2d 826, 831, 729 N.Y.S.2d 446, 452, 754 N.E.2d 206, 212 [2001];  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] ).   The parties agree that the police had the authority to stop the truck based on observations and radar readings confirming that Padilla was speeding (see People v. Ferraiolo, 309 A.D.2d 981, 982, 765 N.Y.S.2d 709 [2003], lv. denied 1 N.Y.3d 627, 777 N.Y.S.2d 26, 808 N.E.2d 1285 [2004];  People v. Carter, 199 A.D.2d 817, 819, 606 N.Y.S.2d 786 [1993], affd. 86 N.Y.2d 721, 631 N.Y.S.2d 116, 655 N.E.2d 157 [1995] ).   The officers were also justified in ordering defendant, a passenger in a lawfully stopped vehicle, to get out of the vehicle (see People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989], cert. denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376 [1989] ).   While mere unusual or innocuous movements are insufficient to authorize officers to perform a pat down (see People v. Batista, 88 N.Y.2d 650, 655, 649 N.Y.S.2d 356, 672 N.E.2d 581 [1996] ), the officers here were authorized to pat down defendant for their safety based on their reasonable suspicion that he was armed or posed a safety threat (see id. at 653, 649 N.Y.S.2d 356, 672 N.E.2d 581;  see also Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968];  People v. Siler, 288 A.D.2d 625, 626, 733 N.Y.S.2d 501 [2001], lv. denied 97 N.Y.2d 709, 739 N.Y.S.2d 110, 765 N.E.2d 313 [2002];  People v. Crawford, 256 A.D.2d 719, 720, 682 N.Y.S.2d 253 [1998], lvs. denied 92 N.Y.2d 1048, 1049, 1055, 685 N.Y.S.2d 426, 427, 433, 708 N.E.2d 183, 184, 190 [1999] ).   The officers saw defendant leaning forward, fidgeting and moving his arms around in the truck, which had recently been occupied by Padilla, a man with an outstanding arrest warrant and a record of violent felonious behavior and weapons possession.   One officer testified that defendant continued to fidget with his hands out of sight when he approached the truck (see People v. Maldonado, 251 A.D.2d 48, 49, 672 N.Y.S.2d 719 [1998] ).   Here, more than mere proximity to Padilla justified the concern for officer safety (see People v. Williams, 305 A.D.2d 804, 807, 759 N.Y.S.2d 580 [2003];  cf. People v. Chinchillo, 120 A.D.2d 266, 268-269, 509 N.Y.S.2d 153 [1986] ).   The officer's request that defendant remove his vest was reasonable based on the bulkiness of that garment and the officer's inability to determine whether a weapon was being concealed.   The officer's slight raising of defendant's pant leg to rule out the possibility of weapons hidden in his boot was likewise reasonable and not intrusive.   Based on the record, we will not disturb the court's finding that gravity, rather than the officer's actions, was the most likely cause of the cocaine's movement from defendant's boxer shorts down his pant leg.   Based on the facts and circumstances known at the time of the frisk, “ ‘a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger’ ” (People v. Crawford, supra at 720, 682 N.Y.S.2d 253, quoting Terry v. Ohio, supra at 27, 88 S.Ct. 1868).

 Despite defendant's age of 20 years and his lack of a prior criminal record, his sentence of 2 to 6 years was not harsh or excessive considering that the statute authorizes a sentence of 8 1/313 to 25 years for his possession of more than half an ounce of cocaine (see Penal Law § 70.00[2] [b];  [3][b];  People v. Bell, 290 A.D.2d 729, 736 N.Y.S.2d 487 [2002];  People v. Garcia, 278 A.D.2d 597, 718 N.Y.S.2d 231 [2000], lv. denied 96 N.Y.2d 800, 726 N.Y.S.2d 377, 750 N.E.2d 79 [2001];  People v. Padron, 126 A.D.2d 932, 933, 511 N.Y.S.2d 451 [1987], lv. denied 69 N.Y.2d 831, 513 N.Y.S.2d 1039, 506 N.E.2d 550 [1987] ).

ORDERED that the judgment is affirmed, and matter remitted to the County Court of Columbia County for further proceedings pursuant to CPL 460.50(5).



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