Opinion
11-17-2017
The PEOPLE of the State of New York, Respondent, v. Vernell ROBERSON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:On appeal 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] ), defendant contends that County Court erred in refusing to suppress a handgun seized from his person by the police during a traffic stop. We reject that contention. Initially, we reject defendant's contention that the court's factual findings at the suppression hearing are against the weight of the evidence (see People v. Johnson, 143 A.D.3d 1284, 1285, 38 N.Y.S.3d 501 [4th Dept.2016], lv. denied 28 N.Y.3d 1146, 52 N.Y.S.3d 298, 74 N.E.3d 683 [2017] ). "The suppression court's credibility determinations and choice between conflicting inferences to be drawn from the proof are granted deference and will not be disturbed unless unsupported by the record" and, contrary to defendant's contention, we perceive no basis to disturb the court's determination to credit the testimony of the police officers ( People v. Hale, 130 A.D.3d 1540, 1541, 14 N.Y.S.3d 603 [4th Dept.2015], lv. denied 26 N.Y.3d 1088, 23 N.Y.S.3d 645, 44 N.E.3d 943 [2015], reconsideration denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] [internal quotation marks omitted]; see People v. Mills, 93 A.D.3d 1198, 1199, 940 N.Y.S.2d 400 [4th Dept.2012], lv. denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ; People v. Barfield, 21 A.D.3d 1396, 1396–1397, 802 N.Y.S.2d 820 [4th Dept.2005], lv. denied 5 N.Y.3d 881, 808 N.Y.S.2d 584, 842 N.E.2d 482 [2005] ).
The evidence at the suppression hearing established that the police "lawfully stopped the vehicle in which defendant was a passenger because it had excessively tinted windows" ( People v. Fagan, 98 A.D.3d 1270, 1271, 951 N.Y.S.2d 612 [4th Dept.2012], lv. denied 20 N.Y.3d 1061, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013], cert. denied– –– U.S. ––––, 134 S.Ct. 262, 187 L.Ed.2d 191 [2013] ), and lawfully directed defendant to exit the vehicle (see People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989], cert. denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376 [1989] ; People v. Henderson, 26 A.D.3d 444, 445, 809 N.Y.S.2d 567 [2d Dept.2006], lv. denied 6 N.Y.3d 895, 817 N.Y.S.2d 630, 850 N.E.2d 677 [2006] ). Based upon defendant's movements outside the vehicle, "the officers suspected that defendant was attempting to conceal something ..., and they reasonably suspected that defendant was armed and posed a threat to their safety because his actions were directed to the area of his waistband, which was concealed from their view" ( Fagan, 98 A.D.3d at 1271, 951 N.Y.S.2d 612 ). Thus, when defendant grabbed the front area of his waistband upon exiting the vehicle, the first officer was justified in directing defendant to place his hands on the roof of the vehicle, in holding onto defendant's belt, and in instructing him to walk toward the rear of the vehicle (see People v. Green, 80 A.D.3d 1004, 1005, 915 N.Y.S.2d 371 [3d Dept.2011] ; People v. Mack, 49 A.D.3d 1291, 1292, 853 N.Y.S.2d 764 [4th Dept.2008], lv. denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008] ) and, when defendant refused several instructions to stop pressing his waist against the vehicle while sidestepping along it, the first officer was justified in pulling defendant away from the vehicle by the belt (see Fagan, 98 A.D.3d at 1271, 951 N.Y.S.2d 612 ). Even assuming, arguendo, that defendant was subjected to a frisk when the second officer touched defendant's hip area and pushed his body away from the vehicle, thereby revealing the handgun in defendant's waistband, we conclude that such an intrusion was justified based upon defendant's refusal to comply with the repeated instructions to move his waist from the vehicle and the metal-on-metal sound heard by the second officer, which was consistent with the sound of a weapon making contact with the vehicle (see Mack, 49 A.D.3d at 1292, 853 N.Y.S.2d 764 ). We thus conclude that the conduct of the police constituted a "constitutionally justified intrusion designed to protect the safety of the officers" ( People v. Robinson, 278 A.D.2d 808, 809, 718 N.Y.S.2d 524 [4th Dept.2000], lv. denied 96 N.Y.2d 787, 725 N.Y.S.2d 651, 749 N.E.2d 220 [2001] ), and that the court properly refused to suppress the evidence seized as a result thereof (see Mack, 49 A.D.3d at 1292, 853 N.Y.S.2d 764 ).Finally, contrary to defendant's alleged "concession" otherwise, his contention that the police subjected him to an unlawful frisk is preserved for our review (see People v. De Bour, 40 N.Y.2d 210, 214, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; People v. Riddick, 70 A.D.3d 1421, 1423, 894 N.Y.S.2d 260 [4th Dept.2010], lv. denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010] ) and, therefore, his assertion that defense counsel was ineffective for failing to preserve that contention is without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.