People v. Graves

142 A.D.3d 559

37 N.Y.S.3d 131

2016 N.Y. Slip Op. 05763

The PEOPLE, etc., respondent,

v.Eugene GRAVES, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 10, 2016.

Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Gibson, Dunn & Crutcher LLP [Brian R. Morgenstern ], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered December 19, 2013, convicting him of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the physical evidence. “In light of the heightened dangers faced by investigating police officers during traffic stops, 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. Garcia, 20 N.Y.3d 317, 321, 959 N.Y.S.2d 464, 983 N.E.2d 259, citing People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 ; see Michigan v. Long, 463 U.S. 1032, 1047–1048, 103 S.Ct. 3469, 77 L.Ed.2d 1201 ; Pennsylvania v. Mimms,

434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 ). However, a police officer's questions regarding whether an individual has a weapon is a common-law inquiry which must be supported by founded suspicion (see People v. Garcia, 20 N.Y.3d at 324, 959 N.Y.S.2d 464, 983 N.E.2d 259 ; People v. Brannon, 16 N.Y.3d 596, 601–602, 925 N.Y.S.2d 393, 949 N.E.2d 484 ; People v. De Bour, 40 N.Y.2d 210, 225, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Cantor, 36 N.Y.2d 106, 112–113, 365 N.Y.S.2d 509, 324 N.E.2d 872 ). In addition, a pat-down search of a suspect's outer clothing is reasonable and constitutionally permissible when an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety (see People v. Shuler, 98 A.D.3d 695, 696, 949 N.Y.S.2d 758 ; People v. Davenport, 92 A.D.3d 689, 690, 939 N.Y.S.2d 473 ). Among the factors relevant to determining whether a pat-down search is justified are “the substance and reliability of the report that brought the officers to the scene, the nature of the crime that the police are investigating, the suspect's behavior and the shape, size, and location of any bulges in the suspect's clothing” (People v. Shuler, 98 A.D.3d at 696, 949 N.Y.S.2d 758 ).

Under the circumstances of this case, including, among other things, the time of night, the fact that the livery cab in which the defendant was a passenger was speeding, the neighborhood, the officer's observations of the defendant make what he interpreted as a furtive movement indicating that he was hiding something, the defendant's refusal to answer questions or look at the officer in comparison to the other passenger's animated responses, and the abnormal bulge in an unusual spot near the defendant's groin, the officer was justified in inquiring about the bulge and performing the minimally intrusive measure of touching the bulge to verify that it was, in fact, a gun and not, as the defendant stated, cash (see People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ; People v. De Bour, 40 N.Y.2d at 221, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Issac, 107 A.D.3d 1055, 1058, 968 N.Y.S.2d 631 ; People v. Woonbong Chang, 275 A.D.2d 423, 424, 712 N.Y.S.2d 624 ; People v. Moret, 240 A.D.2d 321, 321–322, 659 N.Y.S.2d 445 ; People v. Brunson, 166 A.D.2d 204, 204, 564 N.Y.S.2d 100 ).

The defendant's contention that his conviction of aggravated assault in the State of Pennsylvania did not qualify as a predicate violent felony pursuant to Penal Law § 70.08 on the ground that the Pennsylvania statute prohibits both an attempt to commit an aggravated assault and a completed aggravated assault is without merit (see People v. Muniz, 74 N.Y.2d 464, 467, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; People v. Gonzalez, 61 N.Y.2d 586, 588, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ; People v. Horvath, 81 A.D.3d...