| People v Davis |
| 2013 NY Slip Op 01091 [103 AD3d 810] |
| February 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Collin A. Davis, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Jessica L. Zellner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered November 17, 2010, convicting him of criminal possession of aweapon in the second degree and resisting arrest, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial (Aloise, J.), after a hearing(O'Dwyer, J.H.O.), of that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Ordered that the judgment is affirmed.
"The credibility determinations of a hearing court are entitled to great deference onappeal, and will not be disturbed unless clearly unsupported by the record" (People v Martinez, 58 AD3d870, 870-871 [2009]). " '[A]s a general matter, the decision to stop an automobile isreasonable where the police have probable cause to believe that a traffic violation hasoccurred,' even if the underlying reason for the stop was to investigate another matterunrelated to the traffic violation" (People v Sluszka, 15 AD3d 421, 423 [2005], quotingPeople v Robinson, 97 NY2d 341, 348-349 [2001]). Here, the record supportsthe hearing court's determination to credit a police officer's testimony that he observed avehicle in which the defendant was a passenger make two right turns without signaling,which justified the stop of the vehicle for a traffic infraction (see Vehicle andTraffic Law § 1163 [a]; People v Glover, 84 AD3d 977 [2011]). Contrary to thedefendant's contention, the two right turns were each made at a location which fallswithin the statutory definition of an "intersection" (Vehicle and Traffic Law § 120[a]; see Fan v Buzzitta, 42 AD2d 40, 42 [1973]), and, thus, the failure to signalwhen making each of the turns constituted a violation of Vehicle and Traffic Law§ 1163 (a). Further, the vehicle stop, which was objectively based on a trafficviolation, was "no less valid merely because the officer might also have been entertainingmore serious suspicions" (People v Dougherty, 251 AD2d 344, 345 [1998];see Whren v United States, 517 US 806 [1996]; People v Robinson, 74NY2d 773, 774-775 [1989], cert denied 493 US 966 [1989]; People vOrtiz, 265 AD2d 579 [1999]). Accordingly, the hearing court properly denied thatbranch of the defendant's omnibus motion which was to suppress physical evidenceobserved in plain view inside the vehicle after a lawful stop for a traffic violation (see People v Foster, 4 AD3d434 [2004]).
The Supreme Court providently exercised its discretion in denying the defendant's[*2]motion to reopen the suppression hearing based uponan alleged inconsistency between the hearing and trial testimony of a police officer as towhether he observed a weapon in the stopped vehicle before or after he asked the driverto turn off the engine and hand over the keys. The alleged new facts pertained tocircumstances that occurred in the defendant's presence leading up to his arrest, and,thus, the defendant is presumed to have had knowledge of those facts at the time of thehearing (see People vKneitel, 33 AD3d 816 [2006], cert denied 552 US 907 [2007];People v Jordan, 231 AD2d 646 [1996]). Moreover, since the police officer hadthe discretionary authority to direct the driver to turn off the engine and to instruct theoccupants to exit the vehicle upon making a valid traffic stop (see People vRobinson, 74 NY2d at 775; People v Diaz, 41 NY2d 876 [1977], certdenied 434 US 939 [1997]; People v Grant, 83 AD3d 862, 863 [2011]; People v Willis, 66 AD3d926 [2009]; People v Forbes, 283 AD2d 92, 94 [2001]), the defendantwould not have been entitled to suppression under either the hearing or trial versions ofthe incident (see People vWhaley, 70 AD3d 570, 572 [2010]; People v Sylvain, 33 AD3d 330 [2006]). The additionalgrounds advanced by the defendant on appeal in support of his contention that the courtshould have granted his motion to reopen the hearing are unpreserved for appellatereview and, in any event, without merit (see People v Accardi, 222 AD2d 596,597-598 [1995]).
The Supreme Court properly permitted the People to impeach the testimony of adefense witness with a statement made by that witness's former counsel in his presence ata plea proceeding (see People v Brown, 98 NY2d 226 [2002]). The statement,which differed from the witness's trial testimony, reasonably appeared to be attributableto the witness (see People vKelley, 82 AD3d 463, 465 [2011], mod on other grounds 19 NY3d 887[2012]; People v Russo, 210 AD2d 128, 129 [1994]). Further, to the extent thedefendant asserts a constitutional violation based upon the use of the statement at trial,the defendant lacks standing to assert a violation of the witness's constitutional rights(see People v Velez, 155 AD2d 708 [1989]; People v Miller, 74 AD2d961 [1980]). The additional claims raised on appeal by the defendant with respect to theprior statement are unpreserved for appellate review and, in any event, without merit.
The defendant's contention that the Supreme Court failed to adequately instruct thejury with regard to temporary and lawful possession of a weapon is without merit. Thecharge closely followed the language of the New York Criminal Jury Instructions(see CJI2d[NY] Penal Law § 220.25 [1]) and, considered in its entirety,properly conveyed to the jury the correct principles to be applied in evaluating theevidence before it (see People vSadian, 81 AD3d 987 [2011]; People v Stallings, 54 AD3d 1064 [2008]; cf. People v Russell, 47 AD3d732 [2008]). The defendant's contention that the court failed to adequately chargethe jury that his possession of a weapon must be voluntary also is without merit. Theadditional claims raised by the defendant on appeal with regard to the jury charge areunpreserved for appellate review and, in any event, without merit. Balkin, J.P., Lott,Austin and Sgroi, JJ., concur.