People v Frazier

2008 NY Slip Op 05449

Decided on June 13, 2008

Appellate Division, Fourth Department

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

Decided on June 13, 2008


PRESENT: MARTOCHE, J.P., SMITH, CENTRA, LUNN, AND PINE, JJ.
851 KA 05-00923




Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), rendered February 1, 2005. The judgment convicted defendant, upon a jury verdict, of attempted murder in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DU BRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR RESPONDENT.


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

Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, attempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [vi]; [b]), defendant contends that Supreme Court erred in refusing to suppress evidence seized by the police from the vehicle in which he was a passenger. We reject that contention. The police officer who stopped the vehicle testified at the suppression hearing that she stopped the vehicle based on her observation that the driver was not wearing a seatbelt, in violation of Vehicle and Traffic Law § 1229-c (3). The court's determination to credit the testimony that the stop was based on a traffic violation is entitled to great deference (see People v Prochilo, 41 NY2d 759, 761; People v Lebron, 184 AD2d 784), and the officer's primary motivation for the stop is irrelevant (see People v Robinson, 97 NY2d 341, 350). In any event, the court also properly determined that the People established that the officer had a reasonable suspicion that at least one of the vehicle's occupants had been involved in a crime and thus was justified in stopping the vehicle on that ground as well (see People v Spencer, 84 NY2d 749, 752-753, cert denied 516 US 905; see generally People v Hicks, 68 NY2d 234, 238). Finally, defendant contends that he was denied due process because the police did not electronically record his interrogation. We reject that contention
(see People v Davis, 48 AD3d 1086; People v Vought, 45 AD3d 1247, 1248-1249, lv denied 10 NY3d 817).
Entered: June 13, 2008
JoAnn M. Wahl
Clerk of the Court