People v Ballard

People v Ballard 2008 NY Slip Op 09647 [57 AD3d 264] December 9, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Doreen Ballard, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Mugambi Jouet of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Melissa A. Pennington of counsel), for respondent.

Judgments, Supreme Court, New York County (Lewis Bart Stone, J., at suppression hearing; Robert M. Stolz, J., at pleas and sentence), rendered June 11, 2007, as amended September 19, 2007, convicting defendant of criminal sale of a controlled substance in the fourth and fifth degrees, and sentencing her, as a second felony drug offender, to an aggregate term of three years, unanimously affirmed.

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). In this observation sale case, defendant concedes that there was reasonable suspicion warranting her detention, but argues that the police use of handcuffs elevated the encounter to an arrest, and that probable cause to arrest did not develop until the observing officer made a confirmatory identification. However, the hearing evidence, viewed as a whole, supports the conclusion that defendant was not handcuffed until after the confirmatory identification, notwithstanding some evidence to the contrary. In any event, the record also supports the hearing court's alternate finding that there was probable cause even before the identification (see e.g. People v Martinez, 289 AD2d 125 [2001], lv denied 98 NY2d 653 [2002]; People v Genyard, 276 AD2d 299 [2000], lv denied 95 NY2d 963 [2000]).

Shortly after the arrest, an experienced narcotics officer observed a clear plastic bag containing what he immediately recognized to be cocaine on the console of defendant's van. Accordingly, seizure of the drugs was justified by application of the plain view doctrine (see People v Batista, 261 AD2d 218 [1999], lv denied 94 NY2d 819 [1999]). Defendant's argument [*2]that the hearing court employed the wrong standard with regard to the plain view issue is unpreserved and without merit.

We perceive no basis for reducing the sentence. Concur—Tom, J.P., Gonzalez, Nardelli, Moskowitz and Renwick, JJ.