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People v. Diaz

December 29, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID DIAZ, DEFENDANT-APPELLANT.



Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered February 8, 2006, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony drug offender, to a term of 7 years, affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Nardelli, Catterson, Moskowitz, Renwick, JJ.

3727/05

Defendant was convicted of criminal possession of a controlled substance in the second degree after 253 packets of crack cocaine worth $3,000 were found in a hidden compartment of a minivan that was driven, but not owned, by defendant. The People prosecuted on a theory of constructive possession. We find that the evidence was legally sufficient to establish beyond a reasonable doubt that defendant knowingly and unlawfully possessed crack cocaine and that the crack cocaine he possessed weighed at least four ounces (see Penal Law § 220.18[1]).

Moreover, we find the court properly denied defendant's motion to suppress on grounds of an illegal search. Testimony at the suppression hearing established that on July 21, 2005, Officer Angel Torres of the Manhattan Gang Squad spotted a double-parked minivan, with its engine running, at the corner of W. 152nd Street and Broadway, a known drug-prone area. Torres observed defendant exit the vehicle from the driver's seat to scrape off a Sanitation Department sticker from the vehicle's window with a razor blade. Because the vehicle was illegally double parked in a drug-prone area, Torres approached defendant. When asked why he was double parked, defendant replied that he was waiting for a friend who was inside the grocery store across the street. When Torres asked defendant to move the vehicle, defendant replied that his friend would return from the store in five minutes. Torres testified that defendant had a calm demeanor.

Nevertheless, when the friend failed to return, Torres became suspicious, and believing that drug activity was taking place, asked defendant to show him paperwork for the vehicle. When defendant opened the door to reach into the minivan, Torres, who was standing behind defendant, looked inside the vehicle with a flashlight held on defendant's hands in order to ensure his safety. In doing so, Torres leaned partially into the vehicle.

Torres then observed two $100 bills near the center console of the vehicle and also a small one-inch bag. Although the bag was empty, there appeared to be green particles in the bag which Torres believed to be marijuana. Torres did not smell any marijuana odor coming from the car but based on his observation, he asked defendant to step out of the vehicle.

After confirming that the small bag had contained marijuana, Torres searched the glove compartment and recovered nine new crack pipes, prescription drugs and registration papers. The prescription drugs were not in defendant's name. Moreover, the minivan was registered to a person of a different name but it had not been reported stolen.

At that point, Torres searched the vehicle, and by tugging on the right passenger air bag compartment, he noticed velcro material and determined there was a possibility of concealed items. Upon further searching, Torres discovered 253 bags of crack cocaine hidden in the compartment, whereupon he arrested defendant. After the arrest, defendant changed his story and told Torres that he had borrowed the minivan to buy "weed" and that he had nothing else to say. Torres further testified that he established that defendant lived just two blocks away from where he had double parked the minivan.

On August 31, 2005, a New York County grand jury handed up an indictment against defendant charging him with criminal possession of a controlled substance in the second and third degrees. Defendant moved to suppress the evidence seized from the minivan.

On October 31, 2005, the trial court held a suppression hearing, at the conclusion of which the court denied defendant's motion, finding that Torres was credible and acted reasonably when he testified that he leaned into the minivan to ensure his own safety.

In November 2005, after a jury trial, defendant was convicted of second-degree possession of a controlled substance, the only count submitted to the jury, pursuant to Penal Law § 220.18(1). On February 8, 2006, defendant was sentenced to seven years of imprisonment and five years of post release supervision.

On appeal, defendant argues that the trial court erroneously denied his motion to suppress since Torres lacked probable cause when he partially entered into the vehicle while defendant looked for paperwork. Thus, he argues, the search was illegal. Additionally, defendant claims that since he did not own the minivan and did not act suspiciously when being questioned by Torres, and that the drugs found by Torres were in a hidden compartment not visible to the naked eye, the evidence at trial ...


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