| People v Issac |
| 2013 NY Slip Op 04058 [107 AD3d 1055] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vAnthony Issac, Also Known as Anthony Isaac, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joshua H. Povill of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered November 2, 2011, convicting defendant upon his plea of guilty of thecrime of criminal possession of a weapon in the second degree.
At approximately 9:00 p.m. one evening, while exiting the parking lot of anapartment complex in the City of Kingston, Ulster County, patrol officer Rick Negronobserved an automobile with a loud exhaust system stopped at a stop sign directly acrossthe intersection. Negron illuminated the inside of the vehicle with his spotlight andrecognized defendant as the driver, noting that he was not wearing a seatbelt. Defendantthen sped through the intersection into the parking lot and parked. Negron turned hisvehicle around, reentered the parking lot and pulled up behind defendant. He thenilluminated defendant's car and approached the driver's side while his partner approachedthe passenger side. Upon inquiry, defendant informed Negron that he did not have adriver's license and, when asked who owned the car, defendant failed to respond andlooked at the passenger, who Negron recognized as a recent parolee. Negron askeddefendant to step out of the vehicle and, observing bulges in both pockets of his pants,asked defendant if he possessed any weapons or drugs. Defendant again failed torespond, after which Negron asked him to place his hands on the back of the vehicle andproceeded to perform a pat [*2]frisk of defendant'spockets. When Negron felt the outline of what appeared to be a handgun in defendant'sright pocket, he signaled to another patrol officer who had recently arrived at the scene;that officer reached into defendant's pocket and retrieved a handgun.
Defendant was arrested and later indicted on charges of criminal possession of aweapon in the second and third degrees. A suppression hearing was conducted, afterwhich County Court denied suppression of the handgun. Pursuant to a negotiated pleaagreement, defendant then pleaded guilty to criminal possession of a weapon in thesecond degree in full satisfaction of the indictment, as well as a pending probationviolation, and was thereafter sentenced in accordance with the plea agreement. Defendantnow appeals, contending that County Court erred in failing to suppress the handgun,which challenge survives his guilty plea (see CPL 710.70 [2]; People v Ross, 106 AD3d1194, 1194-1195 [2013]).
We affirm. It is now well settled that a police officer may reasonably initiate a trafficstop based upon the existence of probable cause to believe that a traffic infraction hasoccurred, regardless of the underlying motivation of the officer in doing so (seePeople v Robinson, 97 NY2d 341, 348-349 [2001]; People v Ross, 106AD3d at 1195). Here, inasmuch as Negron observed both that the exhaust system ondefendant's vehicle was excessively loud (see Vehicle and Traffic Law §375 [31]) and that he was operating the vehicle without wearing a seatbelt (seeVehicle and Traffic Law § 1229-c [3]), there was ample basis to approachdefendant's parked car. While defendant contends that the record contains insufficientevidence of the vehicular violations, we note that Negron's testimony was uncontrovertedand, in any event, we accord great weight to the credibility determinations made by thesuppression court, given its peculiar advantage of having seen and heard the witnesses(see People v Morris, 105AD3d 1075, 1077 [2013]; People v Whalen, 101 AD3d 1167, 1168 [2012], lvdenied 20 NY3d 1105 [2013]; People v Green, 80 AD3d 1004, 1005 [2011]; People v Douglas, 42 AD3d756, 757 [2007], lv denied 9 NY3d 922 [2007]).
Turning to defendant's challenge to the search itself, officers may exercise theirdiscretion to require occupants to exit a vehicle once a lawful traffic stop has beeneffected, out of a concern for safety and without particularized suspicion (see People v Garcia, 20 NY3d317, 321 [2012]; People v Robinson, 74 NY2d 773, 774 [1989], certdenied 493 US 966 [1989]; People v Ross, 106 AD3d at 1196; People v Carter, 60 AD3d1103, 1105 [2009], lv denied 12 NY3d 924 [2009]). Furthermore, apat-down search of a suspect's outer clothing is reasonable and constitutionallypermissible when an officer observes facts and circumstances that give rise to areasonable suspicion that a person is armed or poses a threat to his or her safety (seePeople v Williams, 305 AD2d 804, 807 [2003]; People v Hill, 262 AD2d870, 870-871 [1999]). Significantly, "[t]hese encounters can be 'dynamic situationsduring which the degree of belief possessed at the point of inception may blossom byvirtue of responses or other matters which authorize . . . additional action asthe scenario unfolds' " (People vTillery, 60 AD3d 1203, 1205 [2009], lv denied 12 NY3d 860 [2009],quoting People v De Bour, 40 NY2d 210, 225 [1976]; accord People vMorris, 105 AD3d at 1076-1077).
Here, the entire encounter took place after dark in an area to which Negron hadfrequently responded to reports of gang activity, drug sales, fights and shootings. Negrontestified that he was familiar with defendant from his prior criminal activity and thatdefendant had been violent toward police in the past and had twice been charged withresisting arrest. After defendant exited the vehicle, Negron noticed bulges in the pocketsin defendant's "grabbable" area, which Negron defined as the hot zone that defendant'shands could access quickly from [*3]their normal restingposition. Defendant subsequently declined to answer the question as to whether he was inpossession of any weapons or drugs, prompting Negron to conduct the pat frisk thatultimately revealed a concealed handgun. Thus, considering the circumstances in theirtotality, we find that the officer possessed a reasonable basis to perform a pat-downsearch of defendant for the presence of weapons (see People v Green, 80 AD3dat 1005; People v Harper,73 AD3d 1389, 1389-1390 [2010], lv denied 15 NY3d 920 [2010];People v Douglas, 42 AD3d at 758; see also People v Daniels, 103 AD3d 1204, 1204-1205[2013]; People v Grant, 83AD3d 862, 863 [2011], lv denied 17 NY3d 795 [2011]). Defendant'sremaining contentions have been examined and found to be lacking in merit.
Rose, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.