| People v East |
| 2014 NY Slip Op 05089 [119 AD3d 1370] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vRonald East, Jr., Appellant. |
Lotempio & Brown, P.C., Buffalo (Michael H. Kooshoian of counsel), fordefendant-appellant.
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 June 28, 2013. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed andthe matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). We reject defendant's contention that the police lackedprobable cause to stop his vehicle. It is well settled that a traffic stop is lawful where "apolice officer has probable cause to believe that the driver of an automobile hascommitted a traffic violation" (People v Robinson, 97 NY2d 341, 349 [2001]; see People v Binion, 100AD3d 1514, 1515 [2012], lv denied 21 NY3d 911 [2013]). Here, the policehad probable cause to stop defendant's vehicle because one of the officers observed himdriving a motor vehicle and holding a cell phone to his ear while the vehicle was inmotion (see Vehicle and Traffic Law § 1225-c [2] [a], [b]; People v Nunez, 82 AD3d1128, 1129 [2011], lv denied 16 NY3d 898 [2011]). Shortly after defendantexited the vehicle, one of the officers observed a handgun in plain view by the driver'sseat of the vehicle, providing probable cause to arrest defendant (see People v Johnson, 114AD3d 1132, 1132 [2014]). Present—Scudder, P.J., Fahey, Peradotto, Lindleyand Sconiers, JJ.