Opinion
03-28-2017
The PEOPLE of the State of New York, Respondent, v. Nickolas MOORMAN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, RENWICK, ANDRIAS, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J. at hearing; Arlene D. Goldberg, J. at jury trial and sentencing), rendered December 11, 2014, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 7 years, unanimously affirmed.
The hearing court properly denied defendant's motion to suppress physical evidence. When, in a drug-prone area, an officer saw defendant holding a palm-sized plastic bag that the officer recognized from his experience as a possible container for drugs, and when, after the officer merely approached, defendant exhibited a startled expression and appeared to be hiding the bag, the officer had, at least, a founded suspicion of criminal activity warranting a common-law inquiry (see People v. Loretta, 107 A.D.3d 541, 969 N.Y.S.2d 1 [1st Dept.2013], lv. denied 22 N.Y.3d 1157, 984 N.Y.S.2d 641, 7 N.E.3d 1129 [2014] ). The officer did not explicitly or implicitly demand that defendant surrender the bag, but only asked what was in it, leading defendant to open his hand and reveal the presence of drugs (see People v. Carrasquillo, 54 N.Y.2d 248, 253, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] ; see also People v. Bora, 83 N.Y.2d 531, 532–535, 611 N.Y.S.2d 796, 634 N.E.2d 168 [1994] ).
The hearing court, which suppressed defendant's brief and limited statement made at the scene of the arrest as the product of a custodial interrogation, properly denied suppression of defendant's subsequent statement given at the police station made after Miranda warnings following a pronounced break of at least four hours, as well as his subsequent statement made at the District Attorney's office. Based on the totality of the relevant factors, we find that the statements were sufficiently attenuated from the suppressed statement (see People v. White, 10 N.Y.3d 286, 291, 856 N.Y.S.2d 534, 886 N.E.2d 156 [2008], cert. denied 555 U.S. 897, 129 S.Ct. 221, 172 L.Ed.2d 167 [2008] ; People v. Paulman, 5 N.Y.3d 122, 130–131, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] ).