Opinion
No. 45 SSM 37.
Decided January 10, 2008.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered July 12, 2007. The Appellate Division affirmed a judgment of the Supreme Court, New York County (John Cataldo, J.), which had convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree.
Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
The police lawfully stopped a vehicle in which defendant was a passenger for a traffic violation. There was evidence that while approaching the vehicle, the police observed defendant and the driver pass something between them, and observed defendant put his hands in his pockets and act visibly nervous. An officer frisked defendant and felt what appeared to be a bag of drugs. Upon the officer's request to explain the object, defendant replied that it was drugs.
The Appellate Division concluded that defendant's flurry of furtive, suspicious conduct gave the officer reasonable suspicion that he might be concealing a weapon, thereby justifying the frisk; and that the officer's observation during the pat down, coupled with defendant's suspicious behavior, provided the basis for a common-law inquiry by the officer, resulting in defendant's admission to possessing the drugs, which response provided probable cause for defendant's arrest.
People v Allen, 42 AD3d 331, affirmed.
Office of the Appellate Defender, New York City ( Ana VukPavlovic, Richard M. Greenberg and Sara Gurwitch of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City ( Gary S. Snitow of counsel), for respondent.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed. Whether the circumstances of a particular case rise to the level of reasonable suspicion is a mixed question of law and fact, beyond our review if the determination is supported by the record. A determination that the police possessed the common-law right to inquire is also a mixed question of law and fact subject to this Court's limited review. Here, record evidence supports the lower courts' determinations regarding both reasonable suspicion and the common-law right to inquire ( see People v De Bour, 40 NY2d 210).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.