| People v O'Hare |
| 2010 NY Slip Op 03966 [73 AD3d 812] |
| May 4, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Matthew O'Hare, Appellant. |
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Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs,J.), rendered December 21, 2007, convicting him of criminal possession of a weapon in the thirddegree (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Ordered that the judgment is reversed, on the law and the facts, those branches of thedefendant's omnibus motion which were to suppress physical evidence are granted, theindictment is dismissed, and the matter is remitted to the County Court, Suffolk County, for thepurpose of entering an order in its discretion pursuant to CPL 160.50.
The defendant was charged by indictment with operating a vehicle without a seat belt(see Vehicle and Traffic Law § 1229-c [3]) and two counts of criminal possessionof a weapon in the third degree (see Penal Law former § 265.02 [4]).
At the suppression hearing, the People's witness, a police officer, testified that he stopped thecar that the defendant was driving upon observing an air freshener hanging from the rearviewmirror (see Vehicle and Traffic Law § 375 [30]). When the officer approached thedefendant's vehicle, he noticed that the defendant was not wearing the lap portion of his seat belt.The officer then checked the defendant's Nevada driver's license, and discovered that thedefendant's privilege to drive in New York had been suspended. The officer arrested thedefendant and, upon searching the defendant's car, found two firearms which the defendant wasnot licensed to possess in New York.
In fact, the defendant's driving privileges had not been suspended. Further, the defendant'switness at the hearing, a forensic safety engineer, testified that the air freshener hanging from thedefendant's rearview mirror was at dashboard level on a string measuring one-tenth of one inchwide, and would not have obstructed the defendant's view in violation of Vehicle and TrafficLaw § 375 (30) (see People vMacKenzie, 61 AD3d 703 [2009]). After the County Court denied that branch of thedefendant's motion which was to suppress the evidence seized from the vehicle, the defendantentered a plea of guilty to two counts of criminal possession of a weapon in the third degree, andwas sentenced to two concurrent five-year periods of probation.[*2]
The defendant appeals, challenging, among other things,the hearing court's suppression ruling. We reverse.
A police officer may stop a car, inter alia, if the officer has a reasonable suspicion that atraffic infraction has been committed (see People v Sluszka, 15 AD3d 421, 423 [2005]). In reviewing ahearing court's factual determinations based largely upon as assessment of credibility, thedetermination of the trier of fact is ordinarily accorded great weight (see Matter of Robert D., 69 AD3d714, 716-717 [2010]; cf. People vBennett, 57 AD3d 912, 912 [2008]; People v Lopez, 95 AD2d 241 [1983]).However, when the Appellate Division finds that the trier of fact incorrectly assessed theevidence, "the Appellate Division has the power to make new findings of fact" (People vLopez, 95 AD2d at 253; see Matter of Robert D., 69 AD3d at 717; CPL 470.15).
Here, our review of the testimony at the suppression hearing convinces us that the People didnot establish that the officer had a reasonable suspicion that a traffic infraction had beencommitted (cf. Matter of Robert D., 69 AD3d at 717; People v Garafolo, 44AD2d 86, 88 [1974]).
Thus, the stop of the defendant's vehicle was unlawful, and, inasmuch as there was no otherbasis to stop the defendant's vehicle, observe the apparent seat belt violation, run a license check,or search the vehicle for contraband, the evidence recovered as a result of the unlawful stop mustbe suppressed.
In light of our determination, the defendant's remaining contentions have been renderedacademic. Fisher, J.P., Leventhal, Belen and Sgroi, JJ., concur.