People v Dempsey

People v Dempsey 2010 NY Slip Op 09769 [79 AD3d 1776] December 30, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

The People of the State of New York, Respondent, v Aaron J. Dempsey, Appellant.

—[*1] Kristin F. Splain, Conflict Defender, Rochester (Kimberly J. Czapranski of counsel), for defendant-appellant.

Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent.

Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered September 19, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, illegal signal from parked position and no head lamps.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contends that County Court erred in refusing to suppress the weapon that the police seized from his person. According great deference to the court's determination (see generally People v Prochilo, 41 NY2d 759, 761 [1977]), we reject that contention. It is well settled that the police may lawfully stop a vehicle where, as here, they have "probable cause to believe that the driver of [the vehicle] has committed a traffic violation" (People v Robinson, 97 NY2d 341, 349 [2001]). Contrary to defendant's contention, "[i]n making [a] determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant" (Robinson, 97 NY2d at 349). Furthermore, "out of a concern for safety, 'officers may . . . exercise their discretion to require a driver who commits a traffic violation [as well as the passengers in the vehicle] to exit the vehicle even though they lack any particularized reason for believing the driver [or a passenger] possesses a weapon' " (People v Robinson, 74 NY2d 773, 774 [1989], cert denied 493 US 966 [1989], quoting New York v Class, 475 US 106, 115 [1986]). Here, a handgun was recovered from a passenger in the vehicle and, "[t]hus, the police had the requisite reasonable suspicion to believe that at least one of the occupants of the vehicle was armed prior to conducting the pat-down search[ ]" of defendant (People v Edwards, 52 AD3d 1266, 1267 [2008], lv denied 11 NY3d 736 [2008]). Present—Scudder, P.J., Smith, Green, Pine and Gorski, JJ.