Opinion
No. 566 KA 04-01134.
April 20, 2007.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered April 7, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree and assault in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
Present — Scudder, P.J., Hurlbutt, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and assault in the second degree (§ 120.05 [3]). Contrary to the contention of defendant, County Court properly refused to suppress controlled substances seized from his person following his arrest. A plainclothes officer testified at the suppression hearing that, as he drove by defendant in an unmarked vehicle in an area known for numerous drug sales, defendant made a hand gesture that in the officer's experience indicated that defendant was selling drugs. The officer radioed a detailed description of defendant to uniformed officers who thereafter approached defendant and the group of people with whom he was standing. We conclude that the officers had a founded suspicion that criminal activity was afoot, justifying their common-law inquiry of defendant ( see People v De Bour, 40 NY2d 210, 223; People v Rivera, 175 AD2d 78, 79-80, lv denied 78 NY2d 1129; see generally People v Pettiford, 220 AD2d 261, 262). Upon being asked for identification, defendant knocked down one of the officers and fled from the scene, thus justifying a greater level of police intrusion, which eventually led to his arrest ( see People v Leung, 68 NY2d 734, 736; Rivera, 175 AD2d at 79-80). The search of defendant's person, resulting in the seizure of the controlled substances sought to be suppressed, was incident to that lawful arrest ( see People v Weintraub, 35 NY2d 351, 353-354). We have examined defendant's remaining contentions and conclude that they are lacking in merit.