People v. Nichols
| Decision Date | 22 November 2000 |
| Citation | 277 A.D.2d 715,715 N.Y.S.2d 783 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>HERBERT W. NICHOLS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Defendant was arrested when, in the course of a surveillance operation conducted by the Community Narcotics Enforcement Team (hereinafter CNET) of the State Police, he and a codefendant were observed engaging in drug solicitation activities in the City of Hudson, Columbia County. After an unsuccessful attempt to suppress evidence related to the discovery that defendant was carrying 1,100 milligrams of cocaine on his person at the time of his arrest, defendant pleaded guilty to each of the charges against him: criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree and loitering in the first degree. He was sentenced to indeterminate terms of imprisonment of 3 to 10 years and 2 1/3 to 7 years for the possession convictions and a definite term of 30 days in jail for the loitering conviction, to be served concurrently.
On appeal defendant first contests County Court's suppression ruling, asserting that the police conduct that led to the discovery of narcotics in his possession was unlawful. Upon review of the evidence presented at the suppression hearing, we disagree. County Court credited the testimony of the State Trooper who conducted the surveillance and described the sequence of events precipitating defendant's arrest. Acting on a citizen complaint that narcotics trafficking was occurring on Fourth Street in Hudson, the Trooper, an experienced member of CNET, began observing the vicinity from a building on September 17, 1998. At 2:50 P.M. that day, he saw the codefendant approach a woman on the street and spit a bag containing what appeared to be a white substance into her outstretched hand. In response, she handed the codefendant some money. Given that the transfer of a glassine envelope during a street encounter has been recognized as "the hallmark of an illicit drug exchange" (People v McRay, 51 NY2d 594, 604), the Trooper surmised he was witnessing an illegal drug sale.
Immediately thereafter, the Trooper observed the codefendant make a gesture with his head to defendant, who was standing across the street, in a manner that indicated to him that the two men were acquainted. Based on his training and experience, the Trooper interpreted those actions as a signal that a drug transaction had been successfully completed. Moments later, the codefendant and defendant approached each other for a brief conversation and then returned to their original posts on opposite sides of the street. At this juncture, defendant began bending over toward passing automobiles while making hand gestures. Again, utilizing his experience in investigating narcotics trafficking, the Trooper believed that defendant's conduct was in the nature of soliciting narcotics sales to passing motorists.
Two marked police cars that had been summoned by the surveillance officer then appeared on the scene. When defendant noticed the police vehicles, he began to run. However, in the course of his flight, he collided with the Trooper who had been watching his activities as he was headed toward the police vehicles. The Trooper recalled that, concerned for his own safety given this sudden physical contact with defendant, he pushed defendant to the sidewalk, at which time defendant spit out several bags containing a white substance that the Trooper recognized as likely containing crack cocaine. Two other police officers then assisted in defendant's arrest and a subsequent search of defendant's person yielded additional crack cocaine.
It is well settled "that the police may forcibly stop or pursue an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed" (People v Martinez, 80 NY2d 444, 447; see, People v Leung, 68 NY2d 734, 736; People v De Bour, 40 NY2d 210, 223). In People v Martinez (supra), the Court of Appeals held that there was reasonable suspicion justifying the pursuit of an individual who was seen removing a device known to...
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