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,
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 ), 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
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