THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. QUINCY GOODSON DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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 criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that County Court erred in refusing to suppress the handgun found on his person.   Defendant correctly concedes that the police properly stopped the vehicle in which he was a passenger based on a traffic infraction, but he contends that the handgun should have been suppressed because the officers lacked reasonable suspicion to order him to exit the vehicle or frisk him.   We reject that contention.

It is well settled that, “out of a concern for safety, ‘officers may ․ exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing [that] the driver possesses a weapon ’ “ (People v. Robinson, 74 N.Y.2d 773, 774, cert denied 493 U.S. 966, quoting New York v. Class, 475 U.S. 106, 115).  “Inasmuch as the risks in ․ police/civilian vehicle encounters are the same whether the occupant is a driver or a passenger, ‘[the] police may [also] order [passengers] out of an automobile during a stop for a traffic violation’ “ (id. at 775, quoting Michigan v. Long, 463 U.S. 1032, 1047–1048).   In addition, police officers may frisk passengers in a lawfully stopped vehicle to the extent necessary to guard their safety, provided that they act on “ ‘reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for [their] own safety’ “ (People v. Jones, 39 AD3d 1169, 1170–1171, quoting People v. Torres, 74 N.Y.2d 224, 226).   Here, the officer observed defendant reach towards his waistband while he was sitting in the vehicle and then quickly pull his hand away.   The officer also had been informed that another passenger in the vehicle matched the description of the suspect in a series of recent robberies in the area where the vehicle was stopped, and the officer observed additional furtive gestures by that passenger.   Thus, “[c]onsidering the totality of the circumstances ․, [we conclude that] there was an ample measure of reasonable suspicion necessary to justify” the officer's limited frisk for weapons (People v. Benjamin, 51 N.Y.2d 267, 271;  see People v. Flemming, 59 AD3d 1004, lv denied 12 NY3d 816;  People v. Crespo, 292 A.D.2d 177, lv denied 98 N.Y.2d 709).

Patricia L. Morgan

Clerk of the Court