People v. Parker

180 A.D.3d 1072

118 N.Y.S.3d 223

The PEOPLE, etc., Respondent,

v.Shamar A. PARKER, Appellant.

2018–01314

Ind. No. 77/17

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

Submitted - November 18, 2019

February 26, 2020

Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered December 19, 2017, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, 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.

We agree with the County Court's determination to deny that branch of the defendant's omnibus motion which was to suppress a gun recovered from his person during a traffic stop. On a motion to suppress evidence, the defendant bears the ultimate burden of proof, by a preponderance of the evidence, when challenging the legality of a search and seizure, but the People bear the initial burden of showing the legality of the police conduct (see People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 ; People v. Spann, 82 A.D.3d 1013, 1014, 918 N.Y.S.2d 588 ; People v. Thomas, 291 A.D.2d 462, 463, 738 N.Y.S.2d 357 ). The credibility determinations of the hearing court are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record (see People v. Watson, 163 A.D.3d 855, 856–857, 81 N.Y.S.3d 449 ; see People v. Casey, 149 A.D.3d 770, 771, 52 N.Y.S.3d 377 ). Here, a police officer's testimony at the suppression hearing established that the police had the authority to stop the vehicle in which the defendant was a passenger based on the driver's failure to signal while pulling into traffic from its parked position at the curb (see Vehicle and Traffic Law § 1163[a], [d] ; People v. Grimes, 133 A.D.3d 1201, 1202, 20 N.Y.S.3d 261 ). Upon making the valid traffic stop, the police had the discretion to order the occupants to exit the vehicle (see People v. Garcia, 20 N.Y.3d 317, 321, 959 N.Y.S.2d 464, 983 N.E.2d 259 ; People v. Robinson, 74 N.Y.2d 773, 774–775, 545 N.Y.S.2d 90, 543 N.E.2d 733 ; People v. Grant, 83 A.D.3d 862, 863, 921 N.Y.S.2d 285 ). Further, given the defendant's behavior, which included the defendant's initial refusal to exit the vehicle, his "looking around over his shoulders, both shoulders, back and forth" when asked to exit the vehicle, and then, upon exiting the vehicle, his attempt to shield his front and left side from the officer, the officer had a sufficient and reasonable basis to conduct a pat down search of the defendant's waistband and to remove the gun found therein (see CPL 140.50[3] ; People v. Patron, 141 A.D.3d 545, 545–546, 35 N.Y.S.3d 243 ; People v. Grant, 83 A.D.3d at 863, 921 N.Y.S.2d 285, 921 N.Y.S.2d 285 ).

The defendant's contention that the County Court's sentence impermissibly penalized him for exercising his right to a suppression hearing is unpreserved for appellate review since he neither objected to the sentence nor raised this issue at the time of sentencing (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Nahshal, 146 A.D.3d 817, 819, 45 N.Y.S.3d 142 ; People v. Silburn, 145 A.D.3d 799, 801, 43 N.Y.S.3d 461, affd 31 N.Y.3d 144,...