| People v Wiggins |
| 2015 NY Slip Op 02304 [126 AD3d 1369] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDominique T. Wiggins, Appellant. |
Ann M. Nichols, Buffalo and E. Earl Key, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered April 3, 2014. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that County Court erred in refusing to suppress the handgunseized from his person because he was subject to a de facto arrest for which the policedid not have probable cause. Defendant failed to preserve that contention for our review(see People v Andrews, 57AD3d 1428, 1429 [2008], lv denied 12 NY3d 850 [2009]) and, in any event,the contention lacks merit.
The evidence from the suppression hearing establishes that, after the officers stoppeddefendant's vehicle, defendant was unable to produce his license and registration whenasked for them, and that he made repeated furtive movements toward one of his jacketpockets while in his vehicle. After he was directed to exit the vehicle, defendant refusedto obey the officers' further directives that he keep his hands up, thereby preventing theofficers from frisking him for weapons. In response, the officers handcuffed defendantand attempted to place him in a patrol vehicle while they continued their investigation.Defendant again resisted, however, and continued to attempt to reach toward his jacketpocket until additional officers arrived and assisted the initial officers in friskingdefendant. The handgun defendant sought to suppress was found during that frisk.
"It is well established that not every forcible detention constitutes an arrest" (People v Drake, 93 AD3d1158, 1159 [2012], lv denied 19 NY3d 1102 [2012]; see People vHicks, 68 NY2d 234, 239 [1986]), and that officers may handcuff a detainee out ofconcern for officer safety (see People v Allen, 73 NY2d 378, 379-380 [1989]).Furthermore, a "corollary of the statutory right to temporarily detain for questioning isthe authority to frisk if the officer reasonably suspects that he [or she] is in danger ofphysical injury by virtue of the detainee being armed" (People v De Bour, 40NY2d 210, 223 [1976]; seePeople v Curry, 81 AD3d 1315, 1315-1316 [2011], lv denied 16 NY3d858 [2011]). Here, contrary to defendant's contention, we conclude that "he was notsubjected to a de facto arrest when he was briefly detained . . . for theofficer[s'] safety" (Drake, 93 AD3d at 1159; see Allen, 73 NY2d at379-380). Consequently, we further conclude that the police had probable cause to arresthim when they discovered a loaded handgun in his pocket (see People v Madrid, 52 AD3d530, 531 [2008], lv denied 11 NY3d 790 [2008]; People v McCoy, 46 AD3d1348, 1349 [2007], lv denied 10 NY3d 813 [2008]). Present—Smith,J.P., Carni, Sconiers and Valentino, JJ.