PEOPLE v. ARROYO (2018)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of two counts of robbery in the first degree (Penal Law § 160.15[2], [4] ) and one count of criminal possession of a weapon in the second degree (§ 265.03[3] ).  We reject defendant's contention that Supreme Court erred in refusing to suppress physical evidence seized following a traffic stop of his vehicle.  The evidence at the suppression hearing established that the police officer who initiated the stop had probable cause to stop defendant's vehicle for a violation of Vehicle and Traffic Law § 1111(d)(1).  We further conclude that the officer had a founded suspicion that criminal activity was afoot and he was therefore justified in asking for defendant's consent to search the vehicle (see People v. McGinnis, 83 A.D.3d 1594, 1595, 921 N.Y.S.2d 439 [4th Dept. 2011], lv denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967 [2012]; People v. Tejeda, 217 A.D.2d 932, 933, 630 N.Y.S.2d 160 [4th Dept. 1995], lv denied 87 N.Y.2d 908, 641 N.Y.S.2d 238, 663 N.E.2d 1268 [1995] ).  At the time the officer asked defendant for his consent, the officer was aware that an armed robbery had occurred in physical and temporal proximity to the stop and that the robbery had involved two suspects whose clothing partially matched items either worn by defendant and the other occupant of the car or found in the backseat.  Further, the officer testified that the occupants were not wearing coats despite the freezing weather and gave illogical and contradictory responses to his questions (see McGinnis, 83 A.D.3d at 1595, 921 N.Y.S.2d 439; cf. People v. Hightower, 136 A.D.3d 1396, 1396–1397, 25 N.Y.S.3d 764 [4th Dept. 2016] ).  Defendant abandoned his contention that the People failed to establish through clear and convincing evidence that he consented to the search of his vehicle (see People v. Carrasquillo, 142 A.D.3d 1359, 1360, 38 N.Y.S.3d 340 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ) and, in any event, that contention lacks merit.  Finally, in light of our determination, defendant's remaining contentions are moot.