PEOPLE v. VAZQUEZ DIAZ (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 his guilty plea of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b];  [3] ) and one count of criminal possession of a controlled substance in the seventh degree (§ 220.03).  Contrary to defendant's contention, County Court properly refused to suppress physical evidence seized by the police from defendant after a traffic stop of a vehicle in which defendant was a passenger.  We previously determined that the initial traffic stop was lawful on the appeal of another passenger in the same vehicle (see People v. Vadell, 153 A.D.3d 1638, 1639, 62 N.Y.S.3d 643 [4th Dept. 2017] ), and there is no reason to reach a different result here inasmuch as the evidence at the suppression hearing established that the officers lawfully stopped the vehicle because the driver was operating it with no headlights and was not wearing a seat belt.

After properly stopping the vehicle for traffic infractions, officers ordered the other passenger out of the vehicle and recovered a gun from him while defendant remained inside of the vehicle.  The officers then lawfully asked defendant to exit the vehicle (see People v. Mundo, 99 N.Y.2d 55, 58, 750 N.Y.S.2d 837, 780 N.E.2d 522 [2002];  People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989], cert denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376 [1989];  People v. Daniels, 117 A.D.3d 1573, 1574, 986 N.Y.S.2d 731 [4th Dept. 2014] ).  Based on the gun already recovered from the other passenger, the officers “reasonably suspected that defendant was armed and posed a threat to their safety” (People v. Fagan, 98 A.D.3d 1270, 1271, 951 N.Y.S.2d 612 [4th Dept. 2012], lv denied 20 N.Y.3d 1061, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013], cert denied 571 U.S. 907, 134 S.Ct. 262, 187 L.Ed.2d 191 [2013];  see People v. Dempsey, 79 A.D.3d 1776, 1777, 917 N.Y.S.2d 769 [4th Dept. 2010], lv denied 16 N.Y.3d 830, 921 N.Y.S.2d 194, 946 N.E.2d 182 [2011] ), and the fact that one officer drew his weapon as defendant exited the vehicle and defendant was placed in handcuffs after he exited did not transform defendant's detention into an arrest (see People v. Franqueira, 143 A.D.3d 1164, 1166, 40 N.Y.S.3d 588 [3d Dept. 2016] ).  Further, after recovering the gun from the other passenger, the officers 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” (Dempsey, 79 A.D.3d at 1777, 917 N.Y.S.2d 769).  The officers thereafter acquired probable cause to arrest defendant when they observed a gun in a satchel on defendant's chest (see Fagan, 98 A.D.3d at 1271, 951 N.Y.S.2d 612).

Finally, we reject defendant's contention that his sentence is unduly harsh and severe.