People v. Martin

88 A.D.3d 473, 931 N.Y.2d 7

Opinions

At the conclusion of the hearing, the court determined that the police officer’s initial approach to defendant was proper and that there was probable cause for the arrest, and denied defendant’s suppression motion. Defendant then entered into a guilty plea, which included a waiver of the right to appeal. Defendant’s waiver of his right to appeal was invalid because the court conflated the appeal waiver with the rights automatically waived by the guilty plea. Nonetheless, the court properly denied defendant’s suppression motion.

We agree with the hearing court that the officer’s actions were justified at the inception and that the ensuing events justified the extent of the intrusion. Initially, the police officer’s attention was drawn to defendant when the officer observed a suspicious interaction between defendant and another man; the officer saw defendant’s left hand and the other man’s right hand “touching one another” for between ten and thirty seconds on more than one occasion, leading the officer based on his training and experience, to believe that a “drug transaction” was “taking place.” Contrary to the dissent’s allegations, defendant’s interactions and conduct were sufficient to provide the officer with a founded suspicion that criminality was afoot to justify a common-law right to inquire (cf People v Bonilla, 81 AD3d 555 [2011]). The suspicious interaction took place in a drug-prone location and was observed by an experienced officer who was trained in the investigation and detection of narcotics.

Moreover, by the time the officer was within 9 to 10 feet of defendant and the other man, the officer observed a plastic bag containing a white substance “peeking out” from defendant’s closed right fist. Based on his training and experience, he believed the white substance in the bag to be a controlled substance. Under the circumstances, the officer was justified in grabbing defendant’s wrist and forcing open his hand, which revealed the plastic bag with the powder substance. Contrary to the dissent’s position, the evidence supports the conclusion that the officer had a sufficient opportunity to observe and recognize the object in defendant’s hand, and there is no basis for disturbing the court’s credibility determinations. Accordingly, the officer had probable cause to arrest defendant for drug possession (see People v McRay, 51 NY2d 594 [1980]). Concur — Mazzarelli, J.E, Renwick, DeGrasse and Richter, JJ.