Opinion
December 19, 1988
Appeal from the County Court, Nassau County (Winick, J.).
Ordered that the judgment is affirmed.
As is conceded by the defendant, the initial stop of the vehicle which he was driving for violations of the Vehicle and Traffic Law was proper and no custodial detention arose therefrom (see, People v Mathis, 136 A.D.2d 746, 747-748, lv denied 71 N.Y.2d 899; cf., People v Fiorello, 140 A.D.2d 708). The defendant thereafter volunteered information to one police officer that the trunk contained guns and that his codefendants in the car were members of a militant organization. At the same time a second police officer discovered stereo equipment in the trunk of the car by viewing it through an opening in the rear window with his flashlight. These events, combined with the police officers' knowledge that prior burglaries had occurred in the area, created a reasonable suspicion that criminal activity was afoot, justifying further detention and inquiry of the defendant and his codefendants (see, People v Bennett, 70 N.Y.2d 891, 893; People v Chestnut, 51 N.Y.2d 14, 22, cert denied 449 U.S. 1018).
While the defendant did not spontaneously volunteer to open the trunk of the car, he agreed to do so when he was asked, and voluntarily gave the officer his keys (cf., People v DePace, 127 A.D.2d 847, 848, lv denied 69 N.Y.2d 879). Nor did a de facto arrest or custodial interrogation thereafter occur at anytime. There was testimony that the weather was cold outside and while the police car itself functioned in a manner as to effectively lock the defendant in, there is no evidence that the police actively locked the car or used handcuffs or guns. Moreover, neither the defendant nor his codefendants ever protested, or requested they be permitted to proceed or that the questioning end (cf., People v Hicks, 68 N.Y.2d 234; People v Joy, 114 A.D.2d 517, 520). Finally, the defendant and his codefendants were not in custody when they were transported by the police to booth C in order that the stories they gave to the police could be investigated, since they voluntarily accompanied the police, their car could not be driven, and it was cold outside (see, People v Yukl, 25 N.Y.2d 585, 589, mot to amend remittitur denied 26 N.Y.2d 883, cert denied 400 U.S. 851; People v Ryan, 121 A.D.2d 34, 59). As a result, the trial court's determination that probable cause to arrest did not arise until the complainant identified stolen goods in the vehicle while the defendants were at booth C was amply supported by the evidence (see, People v Morales, 65 N.Y.2d 997, 998; People v Yukl, supra, at 589; People v Ryan, supra, at 58). A reasonable man, innocent of the crime, would not have believed that he was under arrest or in custody until the arrest in fact occurred (see, People v Hicks, 68 N.Y.2d 234, 240, supra; People v Chestnut, 51 N.Y.2d 14, 23, supra; People v Yukl, supra).
The defendant's plea allocution was knowingly and voluntarily made in the presence of counsel after the court fully apprised the defendant of the consequences of his plea (see, People v Minor, 143 A.D.2d 146). Upon requesting that his plea be withdrawn, the defendant offered only conclusory allegations of innocence and conceded that he had previously agreed to the plea. As a result, there was no abuse of discretion by the sentencing court in refusing to permit the defendant to withdraw his plea (see, People v Harris, 61 N.Y.2d 9, 16; People v Minor, supra; People v Melendez, 135 A.D.2d 660, lv denied 70 N.Y.2d 1008).
We have considered the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Bracken, Kunzeman and Balletta, JJ., concur.