| People v Graves |
| 2016 NY Slip Op 05763 [142 AD3d 559] |
| August 10, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eugene Graves, Appellant. |
Lynn W. L. Fahey, New York, NY (Barry Stendig of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, SholomJ. Twersky, and Gibson, Dunn & Crutcher LLP [Brian R. Morgenstern], ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered December 19, 2013, convicting him of criminal possession of aweapon in the second degree, criminal possession of a controlled substance in the thirddegree, and resisting arrest, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress the physical evidence. "In light of the heightened dangers faced byinvestigating police officers during traffic stops, a police officer may, as a precautionarymeasure and without particularized suspicion, direct the occupants of a lawfully stoppedvehicle to step out of the car" (People v Garcia, 20 NY3d 317, 321 [2012], citingPeople v Robinson, 74 NY2d 773, 775 [1989]; see Michigan v Long, 463US 1032, 1047-1048 [1983]; Pennsylvania v Mimms, 434 US 106 [1977]).However, a police officer's questions regarding whether an individual has a weapon is acommon-law inquiry which must be supported by founded suspicion (see People vGarcia, 20 NY3d at 324; People v Brannon, 16 NY3d 596, 601-602 [2011];People v De Bour, 40 NY2d 210, 225 [1976]; People v Cantor, 36 NY2d106, 112-113 [1975]). In addition, a pat-down search of a suspect's outer clothing isreasonable and constitutionally permissible when an officer observes facts andcircumstances that give rise to a reasonable suspicion that a person is armed or poses athreat to his or her safety (seePeople v Shuler, 98 AD3d 695, 696 [2012]; People v Davenport, 92 AD3d 689, 690 [2012]). Amongthe factors relevant to determining whether a pat-down search is justified are "thesubstance and reliability of the report that brought the officers to the scene, the nature ofthe crime that the police are investigating, the suspect's behavior and the shape, size, andlocation of any bulges in the suspect's clothing" (People v Shuler, 98 AD3d at696).
Under the circumstances of this case, including, among other things, the time ofnight, the fact that the livery cab in which the defendant was a passenger was speeding,the neighborhood, the officer's observations of the defendant make what he interpreted asa furtive movement indicating that he was hiding something, the defendant's refusal toanswer questions or look at the [*2]officer in comparisonto the other passenger's animated responses, and the abnormal bulge in an unusual spotnear the defendant's groin, the officer was justified in inquiring about the bulge andperforming the minimally intrusive measure of touching the bulge to verify that it was, infact, a gun and not, as the defendant stated, cash (see People v Holmes, 81 NY2d1056, 1058 [1993]; People v De Bour, 40 NY2d at 221; People v Issac, 107 AD3d1055, 1058 [2013]; People v Woonbong Chang, 275 AD2d 423, 424 [2000];People v Moret, 240 AD2d 321, 321-322 [1997]; People v Brunson, 166AD2d 204, 204 [1990]).
The defendant's contention that his conviction of aggravated assault in the State ofPennsylvania did not qualify as a predicate violent felony pursuant to Penal Law§ 70.08 on the ground that the Pennsylvania statute prohibits both anattempt to commit an aggravated assault and a completed aggravated assault is withoutmerit (see People v Muniz, 74 NY2d 464, 467 [1989]; People vGonzalez, 61 NY2d 586, 588 [1984]; People v Horvath, 81 AD3d 850, 851 [2011]; People v Boston, 79 AD3d1140 [2010]; People vThomas, 71 AD3d 1061 [2010]). Since the Pennsylvania statute renders criminalnot one act but several acts which, if committed in New York, would in some cases befelonies and in others would constitute only misdemeanors, the sentencing court waspermitted to look "beyond the statute and scrutinize the accusatory instrument"(People v Gonzalez, 61 NY2d at 590; see People ex rel. Goldman vDenno, 9 NY2d 138 [1961]; People ex rel. Gold v Jackson, 5 NY2d 243,245-246 [1959]; People v Horvath, 81 AD3d at 851). Here, the Pennsylvaniaaccusatory instrument essentially tracked the language of the Pennsylvania aggravatedassault statute (see 18 Pa Cons Stat Ann § 2702 [a] [3]), stating thatthe defendant "did attempt to cause or intentionally or knowingly cause bodily injury,"and that the defendant punched a police officer in the face, causing swelling, and bit thepolice officer in the right and left hands, causing cuts to his hands. Thus, the accusatoryinstrument indicated that the defendant committed a completed aggravated assault,which, if committed in New York, would constitute a felony (cf. People v Sair,173 AD2d 578, 579 [1991]). Mastro, J.P., Rivera, Sgroi and Maltese, JJ., concur.