| People v Everett |
| 2011 NY Slip Op 02250 [82 AD3d 1666] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David Everett,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedOctober 16, 2007 and October 29, 2007. The judgment convicted defendant, upon a jury verdict,of assault in the second degree, operating a motor vehicle without a certificate of inspection,license plate display violation and operating a motor vehicle without a license.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of assault in the second degree and dismissing countone of the indictment and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia,assault in the second degree (Penal Law § 120.05 [3]), defendant contends that theevidence is legally insufficient to support the assault conviction. We agree. Pursuant to PenalLaw § 120.05 (3), "[a] person is guilty of assault in the second degree when. . . , [w]ith intent to prevent . . . a police officer . . . fromperforming a lawful duty . . . , he or she causes physical injury to such. . . police officer . . . ." Here, an officer was injured while he wasattempting to pat down defendant after he and another officer pulled over defendant's vehicle.Although the People established that the police properly stopped defendant's vehicle forviolations of the Vehicle and Traffic Law and asked defendant to exit the vehicle because he hadno identification, we conclude that the pat-down search of defendant for "officer safety" wasillegal. A pat-down search of a traffic offender is not authorized "unless, when the vehicle isstopped, there are reasonable grounds for suspecting that the officer is in danger or there isprobable cause for believing that the offender is guilty of a crime rather than merely a simpletraffic infraction" (People v Marsh, 20 NY2d 98, 101 [1967]). Here, the officers did nothave any "knowledge of some fact or circumstance that support[ed] a reasonable suspicion thatthe [defendant was] armed or pose[d] a threat to [their] safety" (People v Batista, 88NY2d 650, 654 [1996]). The Court of Appeals has expressly declined to adopt the decision of theUnited States Supreme Court in Michigan v Long (463 US 1032 [1983]), "which foundthat an intrusion by the police 'could be justified purely on the theoretical basis. . . that harm could occur after the investigation is terminated and the suspect ispermitted to reenter his [or her] vehicle' " (People v Mundo, 99 NY2d 55, 58 [2002],quoting People v Torres, 74 NY2d 224, 231 [*2]n 4[1989]). Thus, viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence was legally insufficient toestablish that the officer was injured while undertaking a lawful duty (see generally People vBleakley, 69 NY2d 490, 495 [1987]). We therefore modify the judgment by reversing thatpart convicting defendant of assault in the second degree and dismissing count one of theindictment. In light of our conclusion, we do not reach defendant's remaining contentions.Present—Scudder, P.J., Centra, Sconiers, Gorski and Martoche, JJ.