| People v Walker |
| 2011 NY Slip Op 07104 [88 AD3d 1287] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v SamuelWalker, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered January 4, 2011. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contendsthat the weapon seized by the police from the vehicle driven by him, as well as his subsequentstatements to the police, should have been suppressed because the basis for the traffic stop waspretextual and the vehicle was unlawfully impounded and searched. We reject those contentions.The police lawfully stopped the vehicle based on a traffic violation observed by one of theofficers (see People v Dempsey, 79AD3d 1776 [2010], lv denied 16 NY3d 830 [2011]; see generally People vRobinson, 97 NY2d 341, 349 [2001]). Supreme Court's "determination to credit the[officer's] testimony that the stop was based on a traffic violation is entitled to great deference"(People v Frazier, 52 AD3d1317 [2008], lv denied 11 NY3d 788 [2008]). Upon determining that defendant'sdriver's license had been revoked and that the vehicle was owned by a third party who was notpresent at the scene, the police impounded the vehicle and performed a reasonable inventorysearch in accordance with written police procedure (see People v Wilburn, 50 AD3d 1617, 1618 [2008], lvdenied 11 NY3d 742 [2008]; People v Mendez, 239 AD2d 945 [1997], lvdenied 90 NY2d 895 [1997]). Contrary to defendant's further contention, the duration of theperiod of postrelease supervision is not unduly harsh or severe. Present—Centra, J.P.,Fahey, Sconiers, Green and Martoche, JJ.