| People v Dempsey |
| 2010 NY Slip Op 09769 [79 AD3d 1776] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Aaron J.Dempsey, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedSeptember 19, 2007. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree, criminal possession of a weapon in the thirddegree, illegal signal from parked position and no head lamps.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, interalia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),defendant contends that County Court erred in refusing to suppress the weapon that the policeseized from his person. According great deference to the court's determination (see generallyPeople v Prochilo, 41 NY2d 759, 761 [1977]), we reject that contention. It is well settled thatthe police may lawfully stop a vehicle where, as here, they have "probable cause to believe thatthe driver of [the vehicle] has committed a traffic violation" (People v Robinson, 97NY2d 341, 349 [2001]). Contrary to defendant's contention, "[i]n making [a] determination ofprobable cause, neither the primary motivation of the officer nor a determination of what areasonable traffic officer would have done under the circumstances is relevant"(Robinson, 97 NY2d at 349). Furthermore, "out of a concern for safety, 'officers may. . . exercise their discretion to require a driver who commits a traffic violation [aswell as the passengers in the vehicle] to exit the vehicle even though they lack anyparticularized reason for believing the driver [or a passenger] possesses a weapon' "(People v Robinson, 74 NY2d 773, 774 [1989], cert denied 493 US 966 [1989],quoting New York v Class, 475 US 106, 115 [1986]). Here, a handgun was recoveredfrom a passenger in the vehicle and, "[t]hus, the police had the requisite reasonable suspicion tobelieve that at least one of the occupants of the vehicle was armed prior to conducting thepat-down search[ ]" of defendant (People v Edwards, 52 AD3d 1266, 1267 [2008], lv denied11 NY3d 736 [2008]). Present—Scudder, P.J., Smith, Green, Pine and Gorski, JJ.