| People v Green |
| 2011 NY Slip Op 00296 [80 AD3d 1004] |
| January 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ZacharyGreen, Appellant. |
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Mercure, J.P. Appeal from a judgment of the County Court of Albany County (Breslin, J.),entered April 29, 2009, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree and the violation of unlawful possession ofmarihuana.
Defendant was charged in an indictment with criminal possession of a weapon in the seconddegree and unlawful possession of marihuana after he was frisked during a traffic stop.Following a suppression hearing, County Court denied defendant's motion to suppress theevidence recovered during the traffic stop and his subsequent statement to police. Defendant thenpleaded guilty to the indictment in exchange for a promise that the court would not impose themaximum sentence, and was thereafter sentenced to an aggregate term of seven years in prison tobe followed by three years of postrelease supervision. Defendant appeals, and we now affirm.
Initially, we agree with defendant that his waiver of the right to appeal was not validinasmuch as County Court failed to adequately distinguish the right to appeal from those rightsthat are automatically forfeited upon a guilty plea (see People v Lopez, 6 NY3d 248, 256-257 [2006]). Thus, inaddition to his argument that his motion to suppress was improperly denied—an issue thatwas expressly exempted from the waiver—his claim that his sentence is harsh andexcessive is properly before us (seePeople v Newcomb, 45 AD3d 890, 891 [2007]; see also CPL [*2]710.70 [2]; People v Fernandez, 67 NY2d 686, 688 [1986]).Nevertheless, we conclude that defendant's arguments lack merit.
Defendant argues that his motion to suppress should have been granted because the policelacked reasonable suspicion for the traffic stop of the vehicle in which he was a passenger, or tobelieve that he possessed a weapon. As defendant concedes, however, a stop of a motor vehicle isjustified when an officer observes or reasonably suspects that a violation of the Vehicle andTraffic Law has occurred. According deference to County Court's determination crediting thetestimony of the arresting officer that he observed the vehicle in which defendant was apassenger backing out of a parking lot onto a street in an unsafe manner—thereby violatingVehicle and Traffic Law § 1211 (a)—we conclude that the initial stop of the vehiclewas proper (see People vShackleford, 57 AD3d 578, 578 [2008], lv denied 12 NY3d 762 [2009]; People v Douglas, 42 AD3d 756,757 [2007], lv denied 9 NY3d 922 [2007]; People v Lamanda, 205 AD2d 934,935 [1994], lv denied 84 NY2d 828 [1994]).
The officer was therefore acting lawfully in directing defendant, as a passenger in thevehicle, to exit (see People v Mundo, 99 NY2d 55, 58 [2002]; People vRobinson, 74 NY2d 773, 774-775 [1989], cert denied 493 US 966 [1989]; Peoplev Douglas, 42 AD3d at 757-758). Furthermore, when approaching the vehicle, the officerhad observed defendant putting something into his pants. The officer then saw a sock tied todefendant's underwear when he exited the vehicle and became concerned that he possessed aweapon. Thus, the officer was justified in directing defendant to place his hands on his headwhen exiting the vehicle, in grabbing defendant's hand when he reached for his mid-section,and—once defendant began struggling and aggressively attempting to reach thesock—in placing defendant in handcuffs and removing the sock, which was taut, heavy,stretched, and contained a handgun (seePeople v Nelson, 67 AD3d 486, 487 [2009]; People v Shackleford, 57 AD3d at579; People v Henderson, 26 AD3d444, 445-446 [2006], lv denied 6 NY3d 895 [2006]; People v Hensen, 21 AD3d 172,175-176 [2005], lv denied 5 NY3d 828 [2005]). In our view, considering the totality ofthe circumstances, it cannot be said that the officer acted unreasonably and, accordingly, CountyCourt properly denied defendant's motion to suppress.
Defendant's argument that his sentence was harsh and excessive has been considered andfound to be lacking in merit.
Peters, Rose, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed.