PEOPLE v. HENDERSON

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

The PEOPLE, etc., respondent, v. Kenneth HENDERSON, appellant.

Decided: February 21, 2006

ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, STEVEN W. FISHER, and MARK C. DILLON, JJ. Bruce D. Townsend, Walden, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey and Catherine A. Walsh of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered April 22, 2003, convicting him of criminal possession of a controlled substance in the third degree, 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.

 Contrary to the defendant's contention, the record establishes that the police legally stopped the vehicle in which he was a passenger, so that the trooper was authorized to direct both the driver and the defendant passenger to exit the vehicle (see People v. Robinson, 74 N.Y.2d 773, 775, 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. Miles, 208 A.D.2d 1089, 1091, 617 N.Y.S.2d 916).   Further, the hearing court properly determined that the defendant consented to the pat-down search necessary to be given a ride in the patrol car without being restrained (see People v. Natiello, 294 A.D.2d 451, 741 N.Y.S.2d 742;  People v. Brewer, 200 A.D.2d 579, 606 N.Y.S.2d 292, cert. denied 513 U.S. 850, 115 S.Ct. 148, 130 L.Ed.2d 88).   In any event, the trooper acted lawfully in initiating the pat-down search in the interest of protecting his safety (see Matter of Adam M., 217 A.D.2d 628, 629 N.Y.S.2d 770;  People v. Brewer, supra ).   Once the defendant reacted to the trooper's touch of the hard bulge in the defendant's waistband by moving away, the situation appeared to pose an imminent threat to the trooper and he was therefore authorized to handcuff the defendant in a nonarrest detention (see People v. Allen, 73 N.Y.2d 378, 540 N.Y.S.2d 971, 538 N.E.2d 323;  People v. Setzer, 199 A.D.2d 548, 549, 608 N.Y.S.2d 6).

 The trooper testified at the suppression hearing that the hard bulge at the defendant's waistband felt like a gun butt, knife handle, or metal knuckles.   The trooper's testimony was properly found to be credible.   The hearing court's factual findings and credibility determinations are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the hearing record (see People v. Santiago, 18 A.D.3d 675, 794 N.Y.S.2d 689, lv. denied 5 N.Y.3d 810, 803 N.Y.S.2d 39, 836 N.E.2d 1162;  People v. Watson, 15 A.D.3d 598, 791 N.Y.S.2d 571;  People v. Cameron, 6 A.D.3d 546, 775 N.Y.S.2d 63).   Accordingly, the trooper's suspicions, coupled with the defendant's reaction when the trooper touched the object, authorized a continuing search of the defendant's person which resulted in the discovery of contraband (see People v. Hollins, 248 A.D.2d 892, 670 N.Y.S.2d 925;  see also People v. Taylor, 123 A.D.2d 651, 652, 506 N.Y.S.2d 916;  People v. Howard, 2 A.D.3d 1323, 770 N.Y.S.2d 262).

The defendant's subsequent statement was admissible, as the trooper's inquiry was merely designed to clarify the situation rather than to elicit inculpatory statements (see People v. Burnett, 228 A.D.2d 788, 790, 644 N.Y.S.2d 79;  People v. Maldonado, 184 A.D.2d 590, 584 N.Y.S.2d 619).

The defendant's remaining contentions are without merit.

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