People v. Anderson

• Decision Date: 07 March 2013
• Citation: 104 A.D.3d 968,960 N.Y.S.2d 548,2013 N.Y. Slip Op. 01439
• Parties: The PEOPLE of the State of New York, Respondent, v. Brendon ANDERSON, Also Known as James, Appellant.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 968

960 N.Y.S.2d 548

2013 N.Y. Slip Op. 01439

The PEOPLE of the State of New York, Respondent,

v.Brendon ANDERSON, Also Known as James, Appellant.

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

March 7, 2013.

Kevin M. Colwell, Albany, for appellant.

P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY and EGAN JR., JJ.

GARRY, J.

Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered April 15, 2011, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree and criminal sale of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered August 15, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In May 2010, officers of the City of Albany Police Department conducted a controlled buy operation in which a confidential informant (hereinafter CI) contacted defendant to set up a cocaine sale in Albany. Police officers supplied the CI with buy money and a transmitting device and monitored defendant and the CI throughout the transaction, which took place while defendant was in a vehicle. Immediately thereafter, the CI turned narcotics over to the officers and informed them that defendant had a large quantity of cocaine in the vehicle. As defendant drove away from the scene, officers pulled him over for failure to signal, arrested him and, after a preliminary search of the vehicle, transported him and the vehicle to the police station. Defendant was strip-searched and found to have cocaine hidden on his person; a search of the vehicle at the police station disclosed a hidden compartment containing a large quantity of cocaine and the CI's buy money.

Defendant was charged with criminal possession of a controlled substance in the first degree, two counts of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, criminal sale of a controlled substance in the third degree, and intimidating a witness in the third degree. Following a jury trial, he was acquitted of the intimidation charge, convicted of the remaining charges and sentenced to an aggregate prison term of 35 years. County Court subsequently denied defendant's motion to vacate the judgment of conviction ( seeCPL 440.10). Defendant appeals from the judgment and, by permission, from the order denying his posttrial motion.

We are unpersuaded by defendant's claim that County Court should have granted his motion to suppress evidence. Initially, we disagree with defendant's contention that the court improperlybased its determination that there was probable cause for his arrest on hearsay testimony regarding the claim of the CI—who did not testify at the Mapp hearing—that defendant possessed drugs. Although the preliminary roadside search of defendant's vehicle did not confirm the CI's statement, there was independent probable cause for defendant's arrest based upon the police officers' testimony that the CI was searched before the transaction to confirm that he possessed no narcotics and was monitored throughout the transaction, that a trained officer observed the transaction between defendant and the CI and believed it to be a drug deal, and that the CI provided narcotics to the officers immediately thereafter ( see People v. Rolle, 72 A.D.3d 1393, 1395, 900 N.Y.S.2d 187 [2010],lv. denied16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011];People v. Folk, 44 A.D.3d 1095, 1096, 843 N.Y.S.2d 695 [2007],lvs. denied9 N.Y.3d 1006, 1009, 850 N.Y.S.2d 394, 397, 880 N.E.2d 880, 883 [2007];People v. Roark, 29 A.D.3d 1172, 1173, 814 N.Y.S.2d 814 [2006],lv. denied7 N.Y.3d 762, 819 N.Y.S.2d 887, 853 N.E.2d 258 [2006] ).

Further, there was probable cause for the warrantless search of defendant's vehicle. “ ‘[W]hen the occupant of an automobile is arrested, the very circumstances that supply probable cause for the arrest may also give the police probable cause to believe that the vehicle contains contraband [or] evidence of the crime’ ” ( People v. Martin, 50 A.D.3d 1169, 1170, 854 N.Y.S.2d 789 [2008], quoting People v. Blasich, 73 N.Y.2d 673, 678, 543 N.Y.S.2d 40, 541 N.E.2d 40 [1989] ), provided there is a nexus between the arrest and the probable cause for the search ( see People v. Galak, 81 N.Y.2d 463, 467, 600 N.Y.S.2d 185, 616 N.E.2d 842 [1993] ). Here, officers provided the CI with buy money before the transaction and recorded the currency's serial numbers. Immediately after the transaction, an officer observed defendant counting currency in his vehicle. Defendant did not exit the vehicle before police stopped him, and officers searched the CI after the transaction and confirmed that he no longer had the buy money they had provided to him. These circumstances, in addition to the previously discussed narcotics evidence, furnished probable cause to believe that contraband was in the vehicle and “ ‘justifie[d] the search of every part of the vehicle and its contents that may conceal the object of the search’ ” ( People v. Ellis, 62 N.Y.2d 393, 398, 477 N.Y.S.2d 106, 465 N.E.2d 826 [1984], quoting United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 [1982];see People v. Langen, 60 N.Y.2d 170, 180, 469 N.Y.S.2d 44, 456 N.E.2d 1167 [1983],cert. denied465 U.S. 1028, 104 S.Ct. 1287, 79 L.Ed.2d 690 [1984];People v. Dobere, 298 A.D.2d 770, 772, 749 N.Y.S.2d 114 [2002] ). The circumstances further provided a “founded suspicion that criminality was afoot” authorizing a canine sniff of the vehicle ( People v. Devone, 15 N.Y.3d 106, 113, 905 N.Y.S.2d 101, 931 N.E.2d 70 [2010] [internal quotation marks omitted] ), and the officers' authority to search the vehicle was not altered by its removal from the roadside to the police station ( see People v. Milerson, 51 N.Y.2d 919, 921, 434 N.Y.S.2d 980, 415 N.E.2d 968 [1980];People v. Bacalocostantis, 121 A.D.2d 812, 815, 504 N.Y.S.2d 560 [1986],lv. denied68 N.Y.2d 755, 506 N.Y.S.2d 1042, 497 N.E.2d 712 [1986] ).

For similar reasons, we find no impropriety in the strip search conducted at the police station following defendant's arrest. “[A] strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner” ( People v. Hall, 10 N.Y.3d 303, 310–311, 856 N.Y.S.2d 540, 886 N.E.2d 162 [2008],cert. denied555 U.S. 938, 129 S.Ct. 159, 172 L.Ed.2d 241 [2008];see People v. Hunter, 73 A.D.3d 1279, 1280, 902 N.Y.S.2d 678 [2010] ). Some of the factors that may be considered in determining the reasonableness of such a search are the circumstances of the arrest, the defendant's nervousness or unusual conduct, tips from informants, and “an itinerary suggestive of wrongdoing” ( People v. Kelley, 306 A.D.2d 699, 700, 762 N.Y.S.2d 438 [2003],lv. denied1 N.Y.3d 598, 776 N.Y.S.2d 230, 808 N.E.2d 366 [2004] ). Here, after officers observed what appeared to be a drug transaction between the CI and defendant, received narcotics from the CI and found no narcotics or buy money in a preliminary vehicle search, defendant was taken to the police station, where he was described as “a little nervous.” In the presence of three officers, defendant was directed to remove one article of clothing at a time and hand it to the officers. After he had removed all of his clothing, he was asked to bend over; when he did so, a bag full of a substance that proved to be cocaine fell to the floor from between his buttocks. Based on the circumstances, we find that the search was both reasonably conducted and justified by a reasonable suspicion that defendant possessed contraband ( see People v. Pierre, 8 A.D.3d 904, 906, 780 N.Y.S.2d 389 [2004],lv. denied3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [2004] ).

Contrary to defendant's claim, his attorney's failure to request a Darden hearing did not deprive him of the effective assistance of counsel. Such a hearing is warranted when the evidence is insufficient to establish probable cause other than the arresting officer's testimony regarding communications from an informer, and questions as to the informer's identity are raised at the suppression hearing ( seePeople v. Adrion, 82 N.Y.2d 628, 633–634, 606 N.Y.S.2d 893, 627 N.E.2d 973 [1993];People v. Darden, 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974] ). Here, as discussed above, there was sufficient evidence at the suppression hearing to establish probable cause for defendant's arrest independent of the CI's statements.¹ Accordingly, no Darden hearing was required, and defense counsel's failure to request such a hearing did not constitute a lack of meaningful representation ( see People v. Vargas, 72 A.D.3d 1114, 1119, 898 N.Y.S.2d 323 [2010],lv. denied15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010];People v. Smith, 301 A.D.2d 671, 673, 753 N.Y.S.2d 202 [2003],lv. denied99 N.Y.2d 658, 760 N.Y.S.2d 123...