People v Funderbunk

People v Funderbunk 2014 NY Slip Op 08123 Decided on November 20, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 20, 2014
Tom, J.P., Friedman, Andrias, Feinman, Kapnick, JJ.
13554 5628/09

[*1] The People of the State of New York, Respondent,

v

Tyese Funderbunk, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), and Patterson Belknap Webb & Tyler LLP, New York (Jason S. Gould of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J. at suppression hearing; Cassandra M. Mullen, J. at jury trial and sentencing), rendered October 26, 2010, as amended December 10, 2010, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to a term of four years, unanimously affirmed.

The court properly denied defendant's suppression motion. The only police activity challenged on appeal is an officer's act of opening a car door during a lawful traffic stop, which ultimately led to the recovery of contraband. Defendant concedes that the police were entitled to order the occupants to come out

of the car (see People v Robinson, 74 NY2d 773 [1989], cert denied 493 US 966 [1989]), but argues that they were not entitled to open a car door without individualized suspicion of criminality.

Opening a door is a minimally intrusive safety precaution, incident to a valid automobile lawful traffic stop (People v David L., 56 NY2d 698 [1982] revg on dissent, 81 AD2d 893, 895-896 [2d Dept 1981]). Such an action is comparable to, and actually less intrusive than, ordering the occupants to exit the car. We find nothing in People v Garcia (20 NY3d 317 [2012]) to suggest that David L. should no longer be followed.

Here, an officer acted reasonably in opening a door because the car's excessively tinted windows obstructed the view of the car's interior, including the rear seat passenger area, and the officer heard a fellow officer direct the rear passenger to stop moving and place his hands in [*2]view. Accordingly, opening the door was a reasonable safety precaution (see e.g. People v Gonzalez, 298 AD2d 133 [2002], lv denied 99 NY2d 558 [2002]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 20, 2014

CLERK