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The People of the State of New York, Respondent v. Aaron J. Dempsey

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
AARON J. DEMPSEY, DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered September 19, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, illegal signal from parked position and no head lamps.

New York Supreme and/or Appellate Courts 2010_09769.htm

People v Dempsey

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2010

PRESENT: SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contends that County Court erred in refusing to suppress the weapon that the police seized from his person. According great deference to the court's determination (see generally People v Prochilo, 41 NY2d 759, 761), we reject that contention. It is well settled that the police may lawfully stop a vehicle where, as here, they have "probable cause to believe that the driver of [the vehicle] has committed a traffic violation" (People v Robinson, 97 NY2d 341, 349). Contrary to defendant's contention, "[i]n making [a] determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant" (Robinson, 97 NY2d at 349). Furthermore, "out of a concern for safety, officers may . . . exercise their discretion to require a driver who commits a traffic violation [as well as the passengers in the vehicle] to exit the vehicle even though they lack any particularized reason for believing the driver [or a passenger] possesses a weapon' " (People v Robinson, 74 NY2d 773, 774, cert denied 493 US 966, quoting New York v Class, 475 US 106, 115). Here, a handgun was recovered from a passenger in the vehicle and, "[t]hus, the police had the requisite reasonable suspicion to believe that at least one of the occupants of the vehicle was armed prior to conducting the pat-down search[ ]" of defendant (People v Edwards, 52 AD3d 1266, 1267, lv denied 11 NY3d 736).

Entered: December 30, 2010

Patricia L. Morgan Clerk of the Court

20101230

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