Opinion
2012-09-28
The PEOPLE of the State of New York, Respondent, v. Michael A. FAGAN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ) and one count of resisting arrest (§ 205.30). Contrary to defendant's contention, County Court properly refused to suppress the bag of cocaine seized by the police when it fell to the ground from his pant leg during a pat frisk. The officers lawfully stopped the vehicle in which defendant was a passenger because it had excessively tinted windows ( see People v. Estrella, 48 A.D.3d 1283, 1285, 851 N.Y.S.2d 793,affd.10 N.Y.3d 945, 862 N.Y.S.2d 857, 893 N.E.2d 134,cert. denied555 U.S. 1032, 129 S.Ct. 608, 172 L.Ed.2d 457), and lawfully directed defendant 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. denied493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376;People v. Henderson, 26 A.D.3d 444, 445, 809 N.Y.S.2d 567,lv. denied6 N.Y.3d 895, 817 N.Y.S.2d 630, 850 N.E.2d 677). Based on defendant's movements both inside and outside the vehicle, the officers suspected that defendant was attempting to conceal something ( see People v. Batista, 88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581;People v. Grant, 83 A.D.3d 862, 863–864, 921 N.Y.S.2d 285,lv. denied17 N.Y.3d 795, 929 N.Y.S.2d 103, 952 N.E.2d 1098), and they reasonably suspected that defendant was armed and posed a threat to their safety because his actions were directed to the area of his waistband, which was concealed from their view ( see People v. Bracy, 91 A.D.3d 1296, 1297, 937 N.Y.S.2d 501;People v. Nelson, 67 A.D.3d 486, 487, 888 N.Y.S.2d 44). In addition, defendant continued to move his hands toward his waistband despite the officers' repeated requests that he stop doing so ( see People v. Mack, 49 A.D.3d 1291, 1292, 853 N.Y.S.2d 764,lv. denied10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255;People v. Robinson, 278 A.D.2d 808, 809, 718 N.Y.S.2d 524,lv. denied96 N.Y.2d 787, 725 N.Y.S.2d 651, 749 N.E.2d 220). Based upon their reasonable belief that defendant was armed, the officers lawfully conducted a pat frisk ( see Henderson, 26 A.D.3d at 445, 809 N.Y.S.2d 567), and were entitled to use handcuffs to ensure their safety while conducting the frisk ( see People v. Allen, 73 N.Y.2d 378, 379–380, 540 N.Y.S.2d 971, 538 N.E.2d 323;Henderson, 26 A.D.3d at 445, 809 N.Y.S.2d 567). Contrary to defendant's contention, the use of handcuffs did not transform his detention into an arrest, requiring probable cause ( see Allen, 73 N.Y.2d at 380, 540 N.Y.S.2d 971, 538 N.E.2d 323;People v. Tiribio, 88 A.D.3d 534, 535, 930 N.Y.S.2d 583,lv. denied18 N.Y.3d 862, 938 N.Y.S.2d 870, 962 N.E.2d 295). The officers thereafter acquired probable cause to arrest defendant, however, when the bag of cocaine fell to the ground from his pant leg ( see People v. Schell, 261 A.D.2d 422, 422–423, 689 N.Y.S.2d 231,lv. denied94 N.Y.2d 829, 702 N.Y.S.2d 599, 724 N.E.2d 391).
Defendant contends that the court failed to exercise its discretion in denying defendant's request to speak to other counsel. Defendant previously made that same requestto the judge first assigned to his case, and the request was denied. Defendant then renewed the request on the first day of trial, before a different judge, and he contends that the judge who presided over his trial mistakenly believed that he was bound by the prior ruling denying his request. We reject that contention, inasmuch as “we do not read any of the language employed by the court as meaning it misapprehended or failed to exercise its discretion” in denying that request ( People v. Quinones, 74 A.D.3d 494, 494, 904 N.Y.S.2d 9,lv. denied15 N.Y.3d 808, 908 N.Y.S.2d 168, 934 N.E.2d 902). Finally, we reject defendant's contention that his sentence is unduly harsh and severe based on the disparity between the sentence imposed after trial and the sentence offers made during plea negotiations ( see People v. Smith, 21 A.D.3d 1277, 1278, 801 N.Y.S.2d 663,lv. denied7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.