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

925
KA 08-01356
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. FAGAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Dennis F.
Bender, A.J.), rendered June 23, 2008. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree (two counts) and resisting arrest.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1],
[12]) and one count of resisting arrest (§ 205.30). Contrary to
defendant’s contention, County Court properly refused to suppress the
bag of cocaine seized by the police when it fell to the ground from
his pant leg during a pat frisk. The officers lawfully stopped the
vehicle in which defendant was a passenger because it had excessively
tinted windows (see People v Estrella, 48 AD3d 1283, 1285, affd 10
NY3d 945, cert denied 555 US 1032), and lawfully directed defendant to
exit the vehicle (see People v Robinson, 74 NY2d 773, 775, cert denied
493 US 966; People v Henderson, 26 AD3d 444, 445, lv denied 6 NY3d
895). Based on defendant’s movements both inside and outside the
vehicle, the officers suspected that defendant was attempting to
conceal something (see People v Batista, 88 NY2d 650, 654; People v
Grant, 83 AD3d 862, 863-864, lv denied 17 NY3d 795), and they
reasonably suspected that defendant was armed and posed a threat to
their safety because his actions were directed to the area of his
waistband, which was concealed from their view (see People v Bracy, 91
AD3d 1296, 1297; People v Nelson, 67 AD3d 486, 487). In addition,
defendant continued to move his hands toward his waistband despite the
officers’ repeated requests that he stop doing so (see People v Mack,
49 AD3d 1291, 1292, lv denied 10 NY3d 866; People v Robinson, 278 AD2d
808, 809, lv denied 96 NY2d 787). Based upon their reasonable belief
                                 -2-                           925
                                                         KA 08-01356

that defendant was armed, the officers lawfully conducted a pat frisk
(see Henderson, 26 AD3d at 445), and were entitled to use handcuffs to
ensure their safety while conducting the frisk (see People v Allen, 73
NY2d 378, 379-380; Henderson, 26 AD3d at 445). Contrary to
defendant’s contention, the use of handcuffs did not transform his
detention into an arrest, requiring probable cause (see Allen, 73 NY2d
at 380; People v Tiribio, 88 AD3d 534, 535, lv denied 18 NY3d 862).
The officers thereafter acquired probable cause to arrest defendant,
however, when the bag of cocaine fell to the ground from his pant leg
(see People v Schell, 261 AD2d 422, 422-423, lv denied 94 NY2d 829).

     Defendant contends that the court failed to exercise its
discretion in denying defendant’s request to speak to other counsel.
Defendant previously made that same request to the judge first
assigned to his case, and the request was denied. Defendant then
renewed the request on the first day of trial, before a different
judge, and he contends that the judge who presided over his trial
mistakenly believed that he was bound by the prior ruling denying his
request. We reject that contention, inasmuch as “we do not read any
of the language employed by the court as meaning it misapprehended or
failed to exercise its discretion” in denying that request (People v
Quinones, 74 AD3d 494, 494, lv denied 15 NY3d 808). Finally, we
reject defendant’s contention that his sentence is unduly harsh and
severe based on the disparity between the sentence imposed after trial
and the sentence offers made during plea negotiations (see People v
Smith, 21 AD3d 1277, 1278, lv denied 7 NY3d 763).




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
