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

The PEOPLE, etc., respondent, v. Andre DAVIS, appellant.

Decided: August 08, 2006

A. GAIL PRUDENTI, P.J., THOMAS A. ADAMS, REINALDO E. RIVERA, and ROBERT A. LIFSON, JJ. Richard J. Barbuto, Mineola, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Annette B. Almazan of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered March 16, 2005, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Grosso, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and a statement he made to law enforcement officials.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the evidence presented at the suppression hearing was sufficient to establish that a police officer observed his failure to stop at a stop sign, and therefore acted lawfully in stopping his vehicle (see Vehicle and Traffic Law § 1172[a];  Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89;  People v. Robinson, 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638;  People v. Gonzalez, 25 A.D.3d 620, 810 N.Y.S.2d 87, lv. denied 6 N.Y.3d 833, 814 N.Y.S.2d 82, 847 N.E.2d 379;  People v. Lamanda, 205 A.D.2d 934, 613 N.Y.S.2d 755;  People v. Frank, 161 A.D.2d 794, 556 N.Y.S.2d 368, affd. 968 F.2d 298, cert. denied 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696).   Upon ascertaining that the defendant's driver's license was suspended, the officer had probable cause to arrest the defendant (see People v. Mitchell, 303 A.D.2d 422, 755 N.Y.S.2d 867;  People v. Tavarez, 277 A.D.2d 260, 715 N.Y.S.2d 726).   Thus, suppression of the cocaine recovered from the defendant's person was not warranted, as it was recovered during a search incident to a lawful arrest (see Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685;  People v. Perel, 34 N.Y.2d 462, 466-467, 358 N.Y.S.2d 383, 315 N.E.2d 452;  People v. Tavarez, supra).

 Moreover, the defendant was not entitled to suppression of a statement he made to police officers following his arrest.   Although the officers were discussing the drugs found on the defendant's person within earshot of the defendant, the defendant's inquiry as to “how much trouble he was in” was spontaneous (see People v. Bryant, 87 A.D.2d 873, 449 N.Y.S.2d 314, affd. 59 N.Y.2d 786, 464 N.Y.S.2d 729, 451 N.E.2d 476).   After one of the officers succinctly and accurately answered the defendant's question, the defendant volunteered an inculpatory statement (see People v. Brown, 161 A.D.2d 778, 556 N.Y.S.2d 661).   The Supreme Court properly determined that the inculpatory statement was not prompted by the functional equivalent of custodial interrogation, and thus was not subject to suppression (see Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297;  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).

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