| People v Brown |
| 2017 NY Slip Op 02182 [148 AD3d 1534] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Dijon Brown, Appellant. |
Jeremy D. Schwartz, Buffalo, for defendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Ashley R. Lowry of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered July 2,2014. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aweapon in the second degree and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3])and unlawful possession of marihuana (§ 221.05). The charges arose from theseizure of evidence following the stop of the vehicle in which defendant was a passenger. At asuppression hearing, police officers testified that they stopped the vehicle after observing itsdriver violate Vehicle and Traffic Law § 1144-a (a), which requires every operatorof a motor vehicle to "exercise due care to avoid colliding with" a stopped emergency vehiclethat is "displaying" its emergency lights.
We reject defendant's contention that County Court erred in reopening the suppressionhearing to receive additional testimony to clarify which lights on the police vehicle wereilluminated when it was passed by the vehicle in which defendant was riding. Where, as here, thecourt has not yet rendered its decision on the suppression motion, it is within the court'sdiscretion to reopen the hearing to receive such evidence (see People v Binion, 100 AD3d 1514, 1516 [2012], lvdenied 21 NY3d 911 [2013]; Peoplev Ramirez, 44 AD3d 442, 443 [2007], lv denied 9 NY3d 1008 [2007]). We notein any event that defendant was not prejudiced by the additional testimony inasmuch as the initialtestimony of the officers was sufficient to establish that the overhead emergency lights on thepolice vehicle were activated. We further conclude that the evidence at the suppression hearingsupports the court's determination that the officers acquired "probable cause to believe that atraffic violation ha[d] occurred," thereby justifying the stop of the vehicle (Whren v UnitedStates, 517 US 806, 810 [1996]; see People v Robinson, 97 NY2d 341, 349[2001]).
Finally, we conclude that defendant's challenge to the constitutionality of Vehicle and TrafficLaw § 1144-a is not properly before us because defendant failed to give therequisite notice to the Attorney General (see Executive Law § 71 [3]; People v Hibbert, 114 AD3d 1134,1134 [2014], lv denied 23 NY3d 963 [2014]; People v Davis, 68 AD3d 1653, 1654 [2009], lv denied 14NY3d 839 [2010]). Present—Carni, J.P., Lindley, NeMoyer, Troutman and Scudder,JJ.