People v Fabian

People v Fabian 2008 NY Slip Op 08997 [56 AD3d 334] November 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent,
v
Rafael Fabian, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J., at hearing; Ronald A. Zweibel, J., at plea and sentence), rendered November 22, 2006, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him to a term of five years' probation, unanimously affirmed.

The court properly denied defendant's suppression motion. In the late evening, in a drug-prone location, a detective in civilian clothes in an unmarked car observed activity that he recognized as a possible drug transaction, in which defendant made hand-to-hand contact with another person. When the detective and his partner approached, defendant behaved in a nervous manner warranting a reasonable inference that he realized he was in the presence of the police and was trying to change direction to avoid them. Defendant refused to respond to the detective's repeated inquiries and walked away, and then raised to his mouth the same hand he used in the apparent hand-to-hand transaction, thus suggesting a possible attempt to destroy evidence by swallowing it. While each of these events, viewed separately, might be susceptible of innocent interpretation, when viewed collectively they at least provided sufficient reasonable suspicion to warrant physical restraint of defendant (see People v Oeller, 191 AD2d 355 [1993], affd 82 NY2d 774 [1993]), which resulted in the officers' observation of an apparent drug package in defendant's mouth. Concur—Tom, J.P., Andrias, Friedman, Catterson and Acosta, JJ.