Opinion
56 A.D.3d 578 871 N.Y.S.2d 146 The PEOPLE, etc., respondent, v. Fernando VEGA, appellant. 2008-08769 Supreme Court of New York, Second Department November 12, 2008
Bergstein & Ullrich, LLP, Chester, N.Y. (Stephen Bergstein of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela of counsel), for respondent.
ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, WILLIAM E. McCARTHY, and THOMAS A. DICKERSON, JJ. Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered October 4, 2006, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
" Probable cause requires ... information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed" ( People v. McRay, 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015; see People v. Cooper, 38 A.D.3d 678, 679, 833 N.Y.S.2d 118). " The probable cause determination of the hearing court, which had the advantage of hearing and seeing the witnesses firsthand, is to be accorded great weight on appeal, and will not be disturbed unless clearly unsupported by the record" ( People v. Francis, 44 A.D.3d 788, 789, 843 N.Y.S.2d 419; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).
Here, an experienced narcotics detective observed the defendant, in a location known for drug sales, hand a small white packet to an individual in exchange for money, and thereafter, remain on the same street corner, moving back and forth, for the next three or four minutes. We are satisfied that, under the totality of the circumstances, there was sufficient information to lead a reasonable person who possessed the same expertise as the arresting detective to conclude that a crime had been committed and, therefore, that probable cause to arrest existed ( see People v. Jones, 90 N.Y.2d 835, 837, 660 N.Y.S.2d 549, 683 N.E.2d 14; People v. Tinnin, 36 A.D.3d 457, 458, 828 N.Y.S.2d 27; People v. Hartman, 294 A.D.2d 446, 744 N.Y.S.2d 38; People v. Mariner, 147 A.D.2d 659, 659-660, 538 N.Y.S.2d 61; People v. Brown, 124 A.D.2d 592, 507 N.Y.S.2d 736).
Incident to the arrest, the detective searched the defendant's pockets and pants cuffs, and when no evidence or weapons were uncovered, asked the defendant to remove his sneakers. During the search of the sneakers, the defendant stood on the sidewalk in his socks. Forty glassine envelopes of heroin were found inside one of the sneakers. Contrary to the defendant's contention, the removal of his sneakers was not a " strip search" because his body was not visually inspected ( see People v. Hall, 10 N.Y.3d 303, 306, 856 N.Y.S.2d 540, 886 N.E.2d 162, cert. denied __ U.S. __, 129 S.Ct. 159, 172 L.E.2d 241 [2008]; People v. Butler, 27 A.D.3d 365, 369, 813 N.Y.S.2d 366; cf. People v. Jennings, 297 A.D.2d 644, 645, 747 N.Y.S.2d 235). In any event, the detective had a reasonable suspicion that the defendant had concealed evidence in his sneakers based upon his past experience with narcotics arrests and the fact that evidence was not found in the defendant's other clothing ( see People v. Hall, 10 N.Y.3d at 311-312, 856 N.Y.S.2d 540, 886 N.E.2d 162, cert. denied __ U.S. __, 129 S.Ct. 159, 172 L.E.2d 241 [2008] ). The detective's actions were reasonable under the circumstances and limited specifically to preventing the destruction or concealment of evidence of the crime, which is a permissible objective of a warrantless search incident to an arrest ( id. at 309-311, 856 N.Y.S.2d 540, 886 N.E.2d 162; see People v. Belton, 55 N.Y.2d 49, 52-53, 447 N.Y.S.2d 873, 432 N.E.2d 745; People v. Adams, 32 N.Y.2d 451, 455, 346 N.Y.S.2d 229, 299 N.E.2d 653).