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

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Supreme Court, Appellate Division, Fourth Department, New York.

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

KA 07-02343

Decided: December 30, 2010

PRESENT:  SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ. KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.

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, 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 773, 774, cert denied 493 U.S. 966, quoting New York v. Class, 475 U.S. 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).

Patricia L. Morgan

Clerk of the Court