        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

104
KA 10-01765
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALBERT DRAKE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (CHRISTOPHER P.
JURUSIK OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered August 3, 2010. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance in the fifth degree, tampering with physical
evidence and false personation.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of, inter alia, criminal possession of a controlled
substance in the fifth degree (Penal Law § 220.06 [5]), defendant
contends that Supreme Court erred in refusing to suppress both
physical evidence discovered in his vehicle by the police and his
statements to the police. We reject that contention. As defendant
correctly concedes, the People established that the police officer was
entitled to approach him to conduct a common-law inquiry because the
officer had the requisite “founded suspicion that criminal activity
[was] afoot” (People v De Bour, 40 NY2d 210, 223). On the evening
prior to the police conduct at issue, the police received five
separate 911 telephone calls reporting a man displaying a handgun.
The callers provided detailed descriptions of the suspect’s physical
appearance, his vehicle, and his location. When the police responded
to the scene, however, they were unable to locate the suspect or a
handgun. While on patrol the following evening near the location
where the suspect had been reported, an officer observed a vehicle
matching the description provided by the 911 telephone callers being
driven into a gas station. In addition, the driver’s physical
appearance and clothing matched the descriptions of the suspect
provided in the 911 telephone calls. Based upon that information, the
officer was justified in approaching defendant and requesting his name
(see generally People v Moore, 6 NY3d 496, 500; De Bour, 40 NY2d at
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                                                         KA 10-01765

223). After the officer parked his patrol vehicle behind defendant’s
vehicle at the gas station, however, defendant “jumped out of the car,
leaving the [driver’s side] door open,” and “dart[ed]” toward the
store. The officer further testified that he could not see
defendant’s hands and that defendant was moving his arms in an unusual
manner. Defendant’s actions upon exiting the vehicle, coupled with
the 911 telephone calls that a man matching his description had been
seen displaying a handgun in the area the previous evening, furnished
the requisite reasonable suspicion for the officer to detain defendant
temporarily (see Moore, 6 NY3d at 500-501; People v Benjamin, 51 NY2d
267, 270-271). For the same reasons, the officer was justified in
conducting a limited protective frisk of defendant’s outer clothing in
order to ascertain whether he was armed (see People v Wilson, 50 AD3d
1609, 1610, lv denied 11 NY3d 796; People v Robinson, 278 AD2d 808,
809, lv denied 96 NY2d 787).

     Contrary to defendant’s further contention, we conclude that he
was not subjected to a de facto arrest when he was briefly detained in
the patrol vehicle for the officer’s safety (see People v McCoy, 46
AD3d 1348, 1349, lv denied 10 NY3d 813; cf. People v Lowman, 49 AD3d
1262, 1263-1264; see generally People v Allen, 73 NY2d 378, 379-380).
It is well established that not every forcible detention constitutes
an arrest (see People v Hicks, 68 NY2d 234, 239). Indeed, “[i]n
determining whether a de facto arrest has taken place, the test to be
applied is what a reasonable person, innocent of any crime, would have
thought had he [or she] been in the defendant’s position” (People v
Ward, 163 AD2d 501, 502, lv denied 77 NY2d 883; see Hicks, 68 NY2d at
240; People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851). Here,
after the officer was unable to complete the pat down of defendant due
to defendant’s bulky clothing and repeated movements, the officer
placed defendant in the backseat of the patrol vehicle for the
officer’s safety, until assistance arrived. Backup arrived shortly
thereafter and, after the second officer observed crack cocaine on the
front seat of defendant’s vehicle, the police advised defendant of his
rights and placed him under arrest. Under the circumstances
presented, the officer was entitled to “effect [defendant’s] nonarrest
detention in order to ensure [his] own safety” while awaiting
assistance (Allen, 73 NY2d at 379).

     Finally, to the extent that defendant’s contention that he was
denied effective assistance of counsel is not forfeited by his guilty
plea (see People v Shubert, 83 AD2d 1577), we conclude that it lacks
merit. Defendant’s contention is based on the alleged failure of
defense counsel to make any arguments in support of suppression.
Although no motion papers are included in the record on appeal, it is
apparent from the court’s suppression decision and order that defense
counsel in fact made arguments in support of suppression, including
that the police lacked the authority to stop and frisk defendant and
that defendant’s statements were involuntary. Moreover, a review of
the suppression hearing transcript reflects that defense counsel
focused his cross-examination at the suppression hearing on those
issues. Thus, contrary to defendant’s contention, defense counsel
developed a strategy in seeking suppression of both the physical
evidence seized by the police and defendant’s statements to the police
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                                                            KA 10-01765

(see generally People v Ford, 86 NY2d 397, 404).




Entered:   March 16, 2012                          Frances E. Cafarell
                                                   Clerk of the Court
