| People v Graham |
| 2008 NY Slip Op 07261 [54 AD3d 1056] |
| September 30, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nathaniel Graham, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Loehr,J.), rendered January 8, 2007, convicting him of criminal possession of a controlled substance inthe fourth degree, obstructing governmental administration in the second degree, resisting arrest,and aggravated unlicensed operation of a motor vehicle in the third degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
On September 4, 2005, at approximately 3:30 a.m., a police officer observed a vehicle makea left turn at a high rate of speed without stopping at a stop sign or using the turn signal. Hefollowed the vehicle until it stopped at an intersection, and two passengers got out and walkedaway. The defendant, who had been driving, got out and appeared to be attempting to release thehood of the vehicle. The officer stopped the defendant and instructed him to get back into thevehicle, but the defendant did not comply. The officer, who was joined by another officer, askedthe defendant for his license and registration, but the [*2]defendant produced only an "inmate release card" from acorrectional facility. The officer then radioed his dispatcher with the defendant's name and thelicense plate of the vehicle to check the status of the defendant's license and the vehicle'sregistration.
While the officer was waiting to hear back from the dispatcher, the defendant becamebelligerent, cursed at the officer, and repeatedly walked into the opposite lane of traffic and backagain. These actions made the officer nervous, and he told the defendant to sit on the front of thepatrol vehicle. The defendant sat down briefly, then stood up and walked away again, yellingprofanities. The officer repeated the order to sit on the car, and the defendant complied, thendisobeyed, two more times. The defendant's actions, and the unknown whereabouts of thepassengers who had walked away, caused the officer to be concerned for his safety and that of hisfellow officer. The officer told the defendant to place his hands on the patrol car so he could patthe defendant down for weapons. The defendant initially complied, but removed his hands fromthe car as soon as the officer touched his waist area. After the defendant repeatedly refused tokeep his hands on the car, the officers informed him that he was under arrest.
While the officers were attempting to handcuff the defendant, he broke free, and beganswinging the handcuffs, which were attached to only one of his hands, around like a weapon. Theofficers eventually managed to handcuff the defendant and performed a search incident to arrest.They recovered 24 bags of crack cocaine, 12 bags of marijuana, and $204 in cash from thedefendant's front left pants pocket. The defendant moved to suppress the drugs.
"On a motion to suppress physical evidence, the People bear the burden of going forward toestablish the legality of police conduct in the first instance" (People v Hernandez, 40AD3d 777, 778 [2007]). Resolution of issues of credibility is primarily a matter to be determinedby the finder of fact, which saw and heard the witnesses, and its determination should beaccorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]).Contrary to the defendant's contention, the decision of the County Court to credit the testimonyof the police officer involved was clearly supported by the record.
The decision to stop an automobile is reasonable where the police have probable cause tobelieve that a traffic violation has occurred (see Whren v United States, 517 US 806, 810[1996]; People v Robinson, 97 NY2d 341, 348-349 [2001]; People v Sluszka, 15AD3d 421, 423 [2005]). A traffic stop constitutes a limited seizure of the person of eachoccupant (see People v May, 81 NY2d 725, 727 [1992]; People v Harrison, 57NY2d 470, 476 [1982]). For a traffic stop to pass constitutional muster, the officer's action instopping the vehicle must be justified at its inception and the seizure must be reasonably relatedin scope, including its length, to the circumstances which justified the detention in the firstinstance (see United States v Sharpe, 470 US 675, 682 [1985]).
Here, the officer's observation of traffic infractions justified the initial stop and gave him "theright to ask questions relating to the defendant's destination, to request that he produce his licenseand registration, and to ask him to stand by momentarily pending further investigation"(People v Leiva, 33 AD3d 1021, 1022 [2006]). While the officer was awaitinginformation from his dispatcher concerning the status of the defendant's license and vehicleregistration, the defendant became belligerent and uncooperative, and refused several directrequests to remain standing or seated in one place. This inappropriate and disruptive conduct atthe scene of the performance of an official function gave the officer probable cause to arrest thedefendant for obstructing governmental administration in the second degree (see PenalLaw § 195.05; [*3]People v Sowell, 25 AD3d 386[2006]; People v Romeo, 9 AD3d 744, 745 [2004]; Willinger v City of NewRochelle, 212 AD2d 526, 527 [1995]). At that point, the officer was authorized to search thedefendant incident to a lawful arrest, and a pat-down for weapons was reasonably necessaryunder the circumstances to protect the officers (see People v Gokey, 60 NY2d 309, 312[1983]; People v Hernandez, 40 AD3d 777, 778-779 [2007]; People v Cooper, 38AD3d 678, 680 [2007]). Therefore, the County Court properly denied the defendant's motion tosuppress the physical evidence. Spolzino, J.P., Ritter, Dillon and Dickerson, JJ., concur.