People v Colon

People v Colon 2017 NY Slip Op 01791 Decided on March 9, 2017 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 March 9, 2017
Sweeny, J.P., Mazzarelli, Moskowitz, Kahn, JJ.
3359 2265/11

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

v

Joey Colon, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (James Wen of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered April 23, 2015, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

Although we do not find that defendant made a valid waiver of his right to appeal, we find that the court properly denied defendant's suppression motion. During a lawful traffic stop, the police had, at least, a founded suspicion of criminality warranting an inquiry into whether defendant had any weapons (see generally People v Garcia, 20 NY3d 317, 324 [2012]. The officer's suspicions were based on a combination of defendant's suspicious hand movements directed at his waistband, which is a place closely associated with weapons, and the fact that, when directed to get out of the car, he turned his back toward the officer, which could reasonably be interpreted as an effort to hide something. The possibility of innocent explanations for each of defendant's actions, viewed in isolation, does not undermine the finding of founded suspicion.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 9, 2017

CLERK