| People v Jones |
| 2009 NY Slip Op 07049 [66 AD3d 1476] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Horace Jones,Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered May 30, 2006. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence to an indeterminate term ofimprisonment of 2 to 6 years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]). Defendant contends that Supreme Court erred in refusing to suppress the evidence obtainedduring a traffic stop of the vehicle in which he was a passenger based on his allegedly unlawfuldetention during that stop. We reject that contention. While on patrol in an area known for drugactivity, a police officer observed the vehicle pull over, pick up defendant, and then circle thearea. Following a lawful traffic stop for a suspended registration, "the officer had an objective,credible reason to request information from defendant[, another passenger] and the driverconcerning their identities and the origin, destination and purpose of their trip" (People vDewitt, 295 AD2d 937, 938 [2002], lv denied 98 NY2d 709, 767 [2002]). Defendantwas unable to produce any identification, the driver and other passenger in the car did not knowdefendant's name, and the officer was unable to hear defendant's responses to his questions. Wethus conclude that the officer's request that defendant step out of the vehicle was "reasonable inview of the totality of the circumstances" (People v Alvarez, 308 AD2d 184, 187 [2003],lv denied 1 NY3d 567, 3 NY3d 657 [2003]). Even assuming, arguendo, that the officer'srequest was actually a common-law inquiry, we further conclude that the officer had sufficientinformation to support "a founded suspicion that criminality [was] afoot" (People vHollman, 79 NY2d 181, 185 [1992]). We reject defendant's further contention that theofficer's justification for the traffic stop was exhausted once the driver explained that herinsurance had lapsed because she had recently changed insurance companies. At that time, theofficer had not yet issued the driver a traffic ticket and had not yet conducted any furtherinvestigation with respect to the information received from the driver and passengers (cf.People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]).
We agree with defendant, however, that the enhanced sentence is unduly harsh and severe.[*2]We therefore modify the judgment as a matter of discretion inthe interest of justice by reducing the sentence to an indeterminate term of imprisonment of 2 to6 years (see CPL 470.15 [6] [b]). Present—Hurlbutt, J.P., Martoche, Centra, Greenand Gorski, JJ.