Opinion
February 5, 1993
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Callahan, J.P., Green, Lawton, Boehm and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was indicted for criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree after cocaine was found in defendant's home during the execution of a search warrant on November 21, 1986. Defendant was indicted for criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree after a warrantless search of his automobile on November 28, 1986, revealed cocaine. The indictments were consolidated for trial. Defendant was convicted of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree. Defendant received an aggregate sentence of 17 1/2 years to life.
Defendant moved to suppress the fruits of the warrantless search of his vehicle. We agree that suppression was not warranted. At the suppression hearing, Rochester Police Officer Brunette testified that on November 28, 1986, at about 11:00 P.M., he was patrolling the corner of Jefferson Ave. and Flint St., a corner known for its high rate of illegal narcotics activity. He observed defendant standing on the corner huddled with a group of four or five other men. Hands were going back and forth within the group, although the officer could not discern what was being exchanged. Defendant's black Cadillac was running and was parked illegally nearby. Officer Brunette testified that he was present a week earlier when a search warrant was executed at defendant's residence and drugs were located. He knew that defendant was a major drug dealer who responded to his "customers" via a pager unit or beeper. Moreover, the week before, a confidential informant told the officer that defendant had the best cocaine.
As Officer Brunette approached the group in his marked police vehicle, two of the men ran from the scene. Defendant denied any illegal activity and walked "hurriedly" back to his car. Officer Brunette observed defendant put money into his pocket as he made his way to his car. Defendant drove away, followed by Officer Brunette, who activated his lights and siren to pull defendant over a few blocks away. As the officer approached defendant's vehicle, he observed in plain view on the front seat a pager, a box of clear baggies, and a beige, opaque plastic bag, which he believed contained cocaine. The bag had a bulge in it.
Officer Brunette asked defendant to step out of the car, frisked him, and locked him in the rear of the police vehicle. He then searched defendant's vehicle and cocaine was located in the plastic bag.
The suppression court found that Officer Brunette had probable cause to arrest defendant based upon his observations of defendant's activities on the street corner. We disagree. The officer did not observe glassine envelopes being passed (cf., People v McRay, 51 N.Y.2d 594; People v Strik, 96 A.D.2d 1107), nor did he see anyone hand defendant money (cf., People v Small, 144 Misc.2d 560). We conclude, however, that the specific knowledge of defendant's prior drug-related activities by this experienced narcotics officer, coupled with his observations of the occurrence on the corner of Jefferson and Flint, provided him with a reasonable suspicion that defendant had committed a crime, entitling him to pursue and stop defendant's vehicle (see, People v May, 81 N.Y.2d 725; People v Sobotker, 43 N.Y.2d 559, 563). Upon approaching the vehicle, the officer observed in plain view a pager, a box of clear baggies, and a bulging plastic bag. Officer Brunette was aware that defendant conducted his "business" by using a pager, and also knew that plastic baggies are commonly used to package drugs. The officer's observations elevated his reasonable suspicion to probable cause to believe that a crime had taken place, sufficient to arrest defendant. The same information provided him with probable cause to believe that the vehicle contained drugs, allowing him to search the vehicle as well as any closed containers therein (see, People v Blasich, 73 N.Y.2d 673, 678-679; People v Ellis, 62 N.Y.2d 393, 397; People v Belton, 55 N.Y.2d 49, 54-55, rearg denied 56 N.Y.2d 646; People v Friedman, 168 A.D.2d 924, 925, lv denied 77 N.Y.2d 906; People v Spencer, 130 A.D.2d 882, 883, lv denied 70 N.Y.2d 878).
We agree with Supreme Court that the District Attorney did not abuse his discretion in refusing to grant the confidential informant immunity for the testimony he would provide on defendant's behalf at the Alfinito hearing (see, People v Alfinito, 16 N.Y.2d 181; see also, People v Owens, 63 N.Y.2d 824, 825-826; People v Sapia, 41 N.Y.2d 160, 166, cert denied 434 U.S. 823). We agree with Supreme Court's further conclusion that the search warrant was based upon probable cause (see, People v Arnau, 58 N.Y.2d 27, 38; People v Gaspar, 132 A.D.2d 990, 992, appeal dismissed 71 N.Y.2d 887; People v Baris, 116 A.D.2d 174, 185, lv denied 67 N.Y.2d 1050). Defendant's argument that a Sandoval hearing (see, People v Sandoval, 34 N.Y.2d 371) was improperly held outside of his presence (see, People v Dokes, 79 N.Y.2d 656) cannot be reviewed on the record before us. We have examined the remaining issues raised by defendant and find them to be lacking in merit.