| People v Binion |
| 2012 NY Slip Op 07801 [100 AD3d 1514] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David Binion,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedNovember 29, 2006. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the third degree (four counts), attempted criminal possession of aweapon in the third degree and criminal possession of a weapon in the fourth degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, offour counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [former (4)]), one count of attempted criminal possession of a weapon in the third degree(§§ 110.00, 265.02 [1]) and two counts of criminal possession of a weapon in thefourth degree (§ 265.01 [former (4)]). The conviction arose from defendant's possession ofguns in his residence and a vehicle in which he was a passenger. During the initial policeinvestigation of a report of shots fired in the vicinity of defendant's residence, a police sergeantand a police officer each had a face-to-face conversation with a different unidentified citizeninformant. Facts developed in the investigation and the information provided by the twounidentified citizen informants provided the basis for the issuance of a search warrant fordefendant's residence.
Defendant contends the search warrant was not issued upon probable cause and thus thatCounty Court erred in refusing to suppress the guns recovered from his residence by the police.Contrary to defendant's contention concerning the warrant application, the court properly deniedhis motion for a Franks/Alfinito hearing (see Franks v Delaware, 438 US 154[1978]; People v Alfinito, 16 NY2d 181 [1965]) because he failed to make "a substantialpreliminary showing that a false statement knowingly and intentionally, or with recklessdisregard of the truth, was included by the affiant in the warrant affidavit, and . . .[that such] statement [was] necessary to the finding of probable cause" (Franks, 438 USat 155-156; see People v Tambe, 71 NY2d 492, 504-505 [1988]). Additionally, at theDarden hearing, the People established the unavailability of the informants despitediligent efforts to locate them (see People v Carpenito, 80 NY2d 65, 68 [1992]).Thereafter, the court properly considered extrinsic evidence of the informants' existence inreaching its determination that the two informants existed (see People v Fulton, 58 NY2d914, 916 [1983]; cf. [*2]People v Phillips, 242 AD2d856, 856 [1997]). We note that the court's assessment of the witnesses' credibility at theDarden hearing is entitled to great deference (see generally People v Prochilo, 41NY2d 759, 761 [1977]).
Contrary to defendant's further contention, we conclude that the hearsay information suppliedin the search warrant affidavit satisfied the two prongs of the Aguilar-Spinelli test andthat the search warrant was issued upon probable cause (see generally People v DiFalco,80 NY2d 693, 696-699 [1993]). Consequently, we reject defendant's contention that the gunsrecovered from his residence should have been suppressed.
In contending that the court erred in refusing to suppress the guns found in the vehicle inwhich he was a passenger, defendant asserts that the stop of the vehicle, the pat frisk of hisperson, his detention at the scene, the search of the vehicle and his arrest were improper.Contrary to defendant's contention, a traffic stop is lawful where, as here, "a police officer hasprobable cause to believe that the driver of an automobile has committed a traffic violation,. . . [regardless of] the primary motivation of the officer" (People vRobinson, 97 NY2d 341, 349 [2001]). We further conclude that defendant's removal fromthe vehicle and the pat frisk of his person were justified. Based on concern for officer safety, thepolice may properly " 'require a driver who commits a traffic violation and any passenger to exitthe vehicle even though they lack any particularized reason for believing the driver possessesa weapon' " (People v Robinson, 74 NY2d 773, 774 [1989], cert denied 493US 966 [1989]). Here, at the time of the traffic stop, the police observed the furtive movementsof the driver and defendant in the vehicle and, upon identifying defendant, they were aware thatother police officers were simultaneously executing a search warrant for guns at his residence."Thus, '[c]onsidering the totality of the circumstances . . . , [we conclude that] therewas an ample measure of reasonable suspicion necessary to justify' " the removal of defendantfrom the vehicle and the limited frisk for weapons (People v Goodson, 85 AD3d 1569, 1570 [2011], lv denied17 NY3d 953 [2011]; see Robinson, 74 NY2d at 774-775).
We conclude that defendant's detention at the scene of the traffic stop was lawful and did notconstitute a de facto arrest. Defendant was placed in the back seat of a patrol vehicle withouthandcuffs after the police observed him leaving a residence subject to a search warrant, and theyobserved his furtive movements and those of the driver. The nonarrest detention was necessarydue to the suspicion of criminal activity, pursuant to which the police sought the consent of thevehicle's owner to search the vehicle (see generally People v Abdur-Rahman, 278 AD2d884, 885 [2000], lv denied 96 NY2d 825 [2001]). Furthermore, the police action indetaining defendant was reasonable based on the need for officer safety (see People v Drake, 93 AD3d1158, 1160 [2012]) and the needs of law enforcement to ensure that defendant did notinterfere with execution of the search warrant (see generally People v Jackson, 88 AD3d 451, 451-452 [2011],lv denied 18 NY3d 884 [2012]). Upon obtaining the consent of the vehicle owner tosearch the vehicle (see People vQuagliata, 53 AD3d 670, 671 [2008], lv denied 11 NY3d 834 [2008]; see also People v Calloway, 71 AD3d1493, 1493 [2010], lv denied 15 NY3d 748 [2010]), the police recovered twohandguns from the interior of the vehicle, whereupon "reasonable suspicion ripened intoprobable cause to arrest defendant" (People v Coon, 212 AD2d 1009, 1010 [1995], lvdenied 85 NY2d 937 [1995]; seePeople v Williams, 17 AD3d 1043, 1044 [2005], lv denied 5 NY3d 811 [2005]).
Also contrary to defendant's contention, the court did not err in reopening the suppressionhearing to clarify the timing of the vehicle owner's consent to search the vehicle before renderinga decision on defendant's suppression motion (see People v Ramirez, 44 AD3d 442, 443 [2007], lv denied9 NY3d 1008 [2007]; People vCestalano, 40 AD3d 238, 238-239 [2007], lv denied 9 NY3d 921 [2007]).
We further conclude that the court properly admitted in evidence the guns recovered from thevehicle. "Mere identification by one familiar with the object[s] . . . will be sufficient[to [*3]authenticate evidence] 'when the object[s] possess[ ]unique characteristics or markings' and any material alteration would be readily apparent"(People v McGee, 49 NY2d 48, 60 [1979]), and there were no testimonial, out-of-courtstatements that would implicate defendant's right of confrontation (cf. Bullcoming v NewMexico, 564 US —, —, 131 S Ct 2705, 2710 [2011]).
Finally, the imposition of consecutive sentences was not illegal given that two distinct actswere involved (see People v Laureano, 87 NY2d 640, 643 [1996]; People vBrown, 80 NY2d 361, 363-364 [1992]). Present—Scudder, P.J., Smith, Fahey, Carniand Valentino, JJ.