In conjunction therewith, "a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car" ( People v. Martin , 156 A.D.3d at 957, 66 N.Y.S.3d 572 [internal quotation marks and citation omitted]; see People v. Wideman, 192 A.D.3d 1384, 1385, 145 N.Y.S.3d 194 [3d Dept. 2021], affd 38 N.Y.3d 1067, 171 N.Y.S.3d 28, 190 N.E.3d 1160 [2022] ; see alsoPeople v. Cooper, 199 A.D.3d 1061, 1062, 157 N.Y.S.3d 185 [3d Dept. 2021], lv denied 38 N.Y.3d 926, 164 N.Y.S.3d 10, 184 N.E.3d 831 [2022] ). Additionally, "[a] police officer may request consent to search a vehicle if, during a traffic stop, the officer develops a founded suspicion that criminality is afoot" ( People v. Hayden, 155 A.D.3d 1309, 1310, 65 N.Y.S.3d 320 [3d Dept. 2017] ; seePeople v. Cooper, 199 A.D.3d at 1062, 157 N.Y.S.3d 185 ; People v. Whalen, 101 A.D.3d 1167, 1168, 956 N.Y.S.2d 598 [3d Dept. 2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ).

Disposition: Applications for Criminal Leave to appeal granted Decision Reported Below: 3d Dept: 192 A.D.3d 1384 (Clinton)

Disposition: Applications for Criminal Leave to appeal granted Decision Reported Below: 3d Dept: 192 A.D.3d 1384 (Clinton)

Disposition: Applications for Criminal Leave to appeal granted Decision Reported Below: 3d Dept: 192 A.D.3d 1384 (Clinton)

"It is axiomatic that the People have an obligation under Brady to disclose evidence and information in their possession that is both material and favorable to the defense. To establish a Brady violation, a defendant must demonstrate that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" (People v Wideman, 192 A.D.3d 1384, 1387 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], affd 38 N.Y.3d 1067 [2022]). Whether undisclosed evidence is material under Brady's third prong turns on "whether there is a reasonable possibility that the verdict would have been different if the evidence had been disclosed" (People v Rong He, 34 N.Y.3d 956, 959 [2019] [internal quotation marks, emphasis and citations omitted]; see People v Slivienski, 204 A.D.3d 1228, 1240 [3d Dept 2022], lv denied 38 N.Y.3d 1136 [2022]).

While doing so, the second police officer observed defendant move an object from his left side pants pocket to the front of his sweatshirt pocket when the first officer moved from defendant's right side to behind him, suggesting an apparent attempt to avoid the detection of the object, which provided officers with reasonable suspicion that defendant was armed or otherwise posed a threat to their safety and therefore justified the further search of his sweatshirt and person (see People v Morris, 138 A.D.3d at 1241). In granting due deference to County Court's credibility determinations, and upon reviewing the record as a whole, we conclude that defendant's motion to suppress was properly denied (see People v Weigand, 224 A.D.3d 1164, 1166 [3d Dept 2024]; People v Medina, 209 A.D.3d at 1063; People v Wideman, 192 A.D.3d 1384, 1386 [3d Dept 2021], affd 38 N.Y.3d 1067 [2022]).

Wallner's testimony corroborated that of Vargeson, including Wallner's observation of defendant as being agitated and fidgety. Given the foregoing, after stopping the vehicle, due to the inconsistent stories provided by defendant and the driver, the troopers' knowledge of the ongoing drug investigation, their observation of defendant's agitated behavior during the traffic stop and the discovery of, among other things, the hypodermic needle, the troopers had sufficient reasonable suspicion to request that defendant empty his pockets and to perform a pat-down frisk (see e.g. People v Watford, 211 A.D.3d at 1108; People v Medina, 209 A.D.3d at 1062-1063; People v Wideman, 192 A.D.3d 1384, 1386 [3d Dept 2021], affd 38 N.Y.3d 1067 [2022]; compare People v Howell, 49 N.Y.2d 778, 779 [1980]). Accordingly, County Court did not err in denying defendant's motion to suppress the weapon and drugs obtained during the frisk.

As defendant acknowledges, he failed to preserve his argument concerning County Court's response to a certain jury note, of which the parties were appropriately apprised (see People v Wideman, 192 A.D.3d 1384, 1386 [3d Dept 2021], affd 38 N.Y.3d 1067 [2022]; People v Leonard, 177 A.D.3d 1158, 1162 [3d Dept 2019], lv denied 34 N.Y.3d 1160 [2020]). We decline the request to exercise our interest of justice jurisdiction to take corrective action as to the alleged error.

It is also notable that defendant's trial counsel utilized the location of the cuttings to advance his argument that the victim's account of the altercation was inconsistent with the physical proof. Under these circumstances, we find that "defendant has failed to show that prejudice arose because the suppressed evidence was material" and that a new trial is warranted (People v McGhee, 36 N.Y.3d at 1066 [internal quotation marks and citations omitted]; see People v Wideman, 192 A.D.3d 1384, 1387 [3d Dept 2021], affd 38 N.Y.3d 1067 [2022]; People v Smith, 138 A.D.3d 1418, 1419 [4th Dept 2016], lv denied 28 N.Y.3d 937 [2016]; People v Johnson, 107 A.D.3d 1161, 1164 [3d Dept 2013], lv denied 21 N.Y.3d 1075 [2013]; compare People v Negron, 26 N.Y.3d 262, 270 [2015]; People v Williams, 50 A.D.3d 1177, 1180 [3d Dept 2008]). The People emphasize the difference between the DNA testing procedure utilized in this case and the procedure that concerned the forensic scientist's misconduct during the TruAllele certification process.

To be sure, "the People are required to timely disclose all exculpatory and material evidence, including evidence that could be used to challenge the credibility of a crucial prosecution witness" ( People v. Slivienski, 204 A.D.3d 1228, 1239, 166 N.Y.S.3d 392 [3d Dept. 2022] [internal quotation marks and citation omitted], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 854, 193 N.E.3d 519 [2022] ). A defendant seeking to establish a Brady violation "must demonstrate that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ( People v. Wideman, 192 A.D.3d 1384, 1387, 145 N.Y.S.3d 194 [3d Dept. 2021] [internal quotation marks and citation omitted], affd 38 N.Y.3d 1067, 171 N.Y.S.3d 28, 190 N.E.3d 1160 [2022] ; accordPeople v. Houze, 177 A.D.3d 1184, 1187, 115 N.Y.S.3d 141 [3d Dept. 2019], lv denied 34 N.Y.3d 1159, 120 N.Y.S.3d 259, 142 N.E.3d 1161 [2020] ).