Marcellius H-R, Matter of

• Decision Date: 29 July 1996
• Docket Number: H-R
• Citation: 229 A.D.2d 578,646 N.Y.S.2d 154
• Parties: In the Matter of MARCELLIUS(Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 154

646 N.Y.S.2d 154

229 A.D.2d 578

In the Matter of MARCELLIUS H-R. (Anonymous), Appellant.

Supreme Court, Appellate Division,

Second Department.

July 29, 1996.

Jane Spinak, New York City (Barbara Dildine and Randy Hertz, of counsel; Andy Morgan, on the brief), for appellant.

Paul A. Crotty, Corporation Counsel, New York City (Pamela Seider Dolgow and Linda H. Young, of counsel), for respondent.

Before THOMPSON, J.P., and COPERTINO, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (McLeod, J.), dated April 20, 1995, which, upon a fact-finding order of the same court, dated March 29, 1995, made after a hearing, finding that the appellant had committed (1) acts which, if committed by an adult, would have constituted the crime of criminal possession of a weapon in the fourth degree, and (2) acts constituting the crime of unlawful possession of a weapon by a person under 16, adjudged him to be a juvenile delinquent and imposed a one year conditional discharge. The appeal brings up for review the fact-finding order dated March 29, 1995, and the denial, after a hearing, of that branch of the appellant's pre-hearing motion which was to suppress physical evidence.

ORDERED that the order of disposition is affirmed, without costs or disbursements.

We reject the appellant's contention that the gun recovered from the vehicle in which he was riding should have been suppressed on the basis that the police stop of the vehicle was a pretext to an improper investigation. Here, the evidence adduced at the hearing established that the officer properly stopped the vehicle upon observing that it had a broken taillight and made a left turn without signalling (see, People v. Ellis, 62 N.Y.2d 393, 477 N.Y.S.2d 106, 465 N.E.2d 826; People v. Espinal, 209 A.D.2d 538, 619 N.Y.S.2d 69; see also, People v. Robinson, 74 N.Y.2d 773, 545 N.Y.S.2d 90, 543 N.E.2d 733; People v. Pincus, 184 A.D.2d 666, 584 N.Y.S.2d 866). Furthermore, the officer took an "appropriate safety precaution" by ordering the rear-seat passenger out of the vehicle in light of that passenger's nervous and suspicious behavior ( People v. Espinal, supra, at 538, 619 N.Y.S.2d 69; see also, People v. McFadden, 194 A.D.2d 567, 598 N.Y.S.2d 325; People v. Pincus, supra; People v. Shapiro, 141 A.D.2d 577, 529 N.Y.S.2d 186).

In addition, the court...