People v. Diaz

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered June 22, 1989, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of imprisonment of from six years to life, affirmed.

On October 11, 1988, at approximately 5:30 p.m., while *416driving east on Featherbed Lane in the Bronx, plainclothed Police Officer Mahones and his partner observed defendant stepping out of the building at 15 Featherbed Lane holding a dark, opaque plastic bag closely against his body. Officer Mahones looked twice at defendant and told his partner that he "had something”, and that they should "see what he [was] doing there” because "it looked very strange to hold the bag close to the body.” Never losing sight of defendant, the officers made a U-turn, drove back and double-parked near where defendant had begun to cross the street. Officer Mahones exited the car with his shield visibly hanging from his chest and his hand held over his gun, noticeable at his waist. He approached defendant and prepared to instruct him to stop, but before he could do so, defendant’s eyes focused on the officer’s shield, and "popped open” in surprise, whereupon defendant immediately threw the bag at Officer Mahones and ran in the opposite direction. After retrieving the bag from the floor and opening it, Officer Mahones recognized the brick-like package in the bag as a kilo of cocaine. He yelled to his partner to get defendant, and defendant was subsequently arrested.

In a written decision, the hearing court denied defendant’s suppression motion, and thereafter defendant pled guilty to criminal possession of a controlled substance in the second degree and was sentenced to six years to life.

On appeal, defendant challenges the propriety of the initial approach, claiming that the attendant circumstances did not give rise to a " 'founded suspicion that criminal activity [was] afoot’ ” permitting a common-law right of inquiry (quoting, People v De Bour, 40 NY2d 210, 223).

We disagree. Officer Mahones’ conduct did not constitute an intrusion, inasmuch as defendant ran off before the officer could make any inquiry. And, in any event defendant’s peculiar behavior in clutching the black plastic bag to his body—in an area described by Officer Mahones as drug-prone—sufficiently satisfied the "objective credible” criterion necessary to permit an officer to request information (supra, at 223).

Moreover, defendant’s abandonment of the plastic bag was intentional rather than spontaneous. "[Although the time was brief, the defendant had had time enough to reflect and formulate a strategy for ridding himself of the incriminating evidence” (People v Boodle, 47 NY2d 398, 404), particularly since he registered his awareness of the officer’s presence by widening his eyes in apparent surprise.

*417Defendant’s claim that the sentence is excessive is also without merit. Defendant possessed a large quantity of drugs for which he would have been subject to a mandatory minimum sentence of from 15 years to life had he been convicted by a jury as charged. Moreover, the sentence defendant received was that promised him in exchange for his plea (see, People v Farrar, 52 NY2d 302, 306-307). Concur—Wallach, J. P., Kupferman and Ross, JJ.