People v Thompson (Willie)

[*1] People v Thompson (Willie) 2004 NY Slip Op 50611(U) Decided on June 9, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED June 9, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO. JJ.
NO.2002-1635 RO CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

WILLIE M. THOMPSON, Appellant.

Appeal by defendant from a judgment of the Justice Court, Town of Ramapo, Rockland County (A. Etelson, J.), rendered November 7, 2002, convicting him, after a jury trial, of one count of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and one count of resisting arrest (Penal Law § 205.30), and imposing sentence.

Judgment of conviction unanimously reversed on the law, defendant's motion to suppress granted, and accusatory instrument dismissed.

The arresting officer observed defendant at 7:30 P.M., on a July evening, speaking with another person on the sidewalk in a drug-prone location and engage that person in what the officer, an experienced investigator of narcotics transactions, could characterize only as some sort of exchange, without observing the transfer of currency or any identifiable object bearing the "telltale sign" or hallmark" of an illegal substance, such as the manner in which such substances are packaged (see People v McRay, 51 NY2d 594, 604 [1980]; cf. People v Major, 309 AD2d 649, 649-650 [2003]; People v Armstrong, 299 AD2d 224, 225 [2002]). The officer's subsequent demand that defendant display to the officer what he held in his hand was not justified under the circumstances. While the furtive exchange of even an unidentified object for currency, in a drug-prone area and in a manner understood by "an experienced officer . . . trained in the investigation and detection of narcotics [transactions]" to be "typical of a drug sale" (People v Jones, 90 NY2d 835, 837 [1997]; e.g. People v Murphy, 267 AD2d 254 [1999]; People v Dukes, 254 AD2d 149 [1998]) may provide the requisite justification, the officer observed no [*2]furtive behavior or any other facts that would justify his subsequent demand that defendant "open [his] hand" (cf. People v King, 200 AD2d 487, 488 [1994]; see generally People v McNatt, 65 NY2d 1046, 1048 [1985] [even where the facts establish a reasonable suspicion of criminality, further justification for a search is required]). Although defendant refused to cooperate with such demand by moving his arms and body to conceal the content of his hands from the officer's sight, we cannot conclude, upon an "objective . . . determination of the facts" (People v Robinson, 271 AD2d 17, 24, affd 97 NY2d 968 [2000]) that the demand itself was "justified in its inception and . . . reasonably related in scope to the circumstances which rendered its initiation permissible" (People v De Bour, 40 NY2d 210, 222 [1976]). Nor can such refusal, under the circumstances presented, justify the officer's subsequent actions which culminated in defendant's arrest.
Thus, suppression of the cocaine found pursuant to the post-arrest search of defendant's pocket should have been granted, and "[t]here being no probable cause that authorized defendant's arrest, []he cannot be guilty of resisting arrest" (People v Peacock, 68 NY2d 675, 677 [1986]; see People v Jensen, 86 NY2d 248, 253 [1995]; People v Hawkins, NYLJ, July 13, 1998 [App Term, 9th & 10th Jud Dists]), and this count also is dismissed.
Decision Date: June 09, 2004