People v. Donald R., 14871, 5588/09

• Decision Date: 21 April 2015
• Docket Number: 14871, 5588/09
• Citation: 8 N.Y.S.3d 282,2015 N.Y. Slip Op. 03283,127 A.D.3d 575
• Parties: The PEOPLE of the State of New York, Respondent, v. DONALD R., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 575

8 N.Y.S.3d 282

2015 N.Y. Slip Op. 03283

The PEOPLE of the State of New York, Respondent

v.DONALD R., Defendant–Appellant.

14871, 5588/09

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

April 21, 2015.

Scott A. Rosenberg, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

TOM, J.P., FRIEDMAN, RENWICK, MOSKOWITZ, DeGRASSE, JJ.

Opinion

Judgment, Supreme Court, New York County (Lawrence Marks, J. at hearing; Gregory Carro, J. at plea and sentencing), rendered December 1, 2010, convicting defendant of criminal possession of a controlled substance in the fifth degree, adjudicating him a youthful offender, and sentencing him to a conditional discharge, unanimously affirmed.

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations.

After seeing defendant remain in the vestibule of a public housing building for more than five minutes, with no circumstances explaining his presence, the police possessed an objective, credible reason to ask him whether he lived there or “had business” there (see People v. Wighfall, 55 A.D.3d 347, 866 N.Y.S.2d 625 [1st Dept.2008], lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009] ). When defendant responded only that he was from Queens, with no indication that he was a resident or the guest of a resident, the police possessed, at the very least, founded suspicion of criminality, i.e. trespassing (see id. ). Accordingly, their request that defendant step outside the vestibule so that they could talk to him was justified, and the encounter was not elevated to a seizure (see e.g. People v. Francois, 61 A.D.3d 524, 525, 877 N.Y.S.2d 54 [1st Dept.2009], affd. 14 N.Y.3d 732, 896 N.Y.S.2d 300, 923 N.E.2d 583 [2010] ).

When defendant suddenly reached into his jacket pocket, the officer acted reasonably in grabbing defendant's hand, which was found to contain drugs. This effort “to prevent defendant from possibly drawing a weapon” was a “minimal self-protective measure” (People v. Wyatt, 14 A.D.3d 441, 441–442, 788 N.Y.S.2d 362 [1st Dept.2005], lv. denied 4 N.Y.3d 837, 796 N.Y.S.2d 592, 829 N.E.2d 685 [2005] ).

We have considered and rejected defendant's remaining arguments.