People v. Carter

• Decision Date: 27 September 2013
• Citation: People v. Carter, 2013 NY Slip Op 6195, 109 A.D.3d 1188, 971 N.Y.S.2d 722 (N.Y. App. Div. 2013)
• Parties: The PEOPLE of the State of New York, Respondent, v. Tarrell J. CARTER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 1188

971 N.Y.S.2d 722

2013 N.Y. Slip Op. 06195

The PEOPLE of the State of New York, Respondent,

v.Tarrell J. CARTER, Defendant–Appellant.

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

Sept. 27, 2013.

Appeal from a judgment of the Monroe County Court(Alex R. Renzi, J.), rendered April 15, 2009.The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.

Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Amanda Dreher of Counsel), for Respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ).Contrary to defendant's contention, County Court properly refused to suppress the gun seized by the police from defendant's person during a pat frisk conducted during a traffic stop.As defendant correctly concedes, the police officer lawfully stopped defendant's vehicle because it had a broken taillight ( see generallyPeople v. Fagan,98 A.D.3d 1270, 1271, 951 N.Y.S.2d 612,lv. denied20 N.Y.3d 1061, 962 N.Y.S.2d 611, 985 N.E.2d 921;People v. Dempsey,79 A.D.3d 1776, 1777, 917 N.Y.S.2d 769,lv. denied16 N.Y.3d 830, 921 N.Y.S.2d 194, 946 N.E.2d 182), and defendant voluntarily exited the vehicle.Given defendant's furtive behavior before and after exiting his vehicle, including being “fidgety” and “ evasive” when answering the police officer's questions, turning the right side of his body away from the police officer, and placing his right hand in his jacket pocket, the police officer “reasonably suspected that defendant was armed and posed a threat to [his] safety”( Fagan,98 A.D.3d at 1271, 951 N.Y.S.2d 612;seePeople v. Daniels,103 A.D.3d 1204, 1205, 962 N.Y.S.2d 522).“Based upon [his] reasonable belief that defendant was armed, the officer[ ] lawfully conducted [the] pat frisk” that resulted in the seizure of the gun ( Fagan,98 A.D.3d at 1271, 951 N.Y.S.2d 612;seePeople v. Batista,88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581;People v. Grant,83 A.D.3d 862, 863–864, 921 N.Y.S.2d 285,lv. denied17 N.Y.3d 795, 929 N.Y.S.2d 103, 952 N.E.2d 1098).

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

SCUDDER, P.J., FAHEY, SCONIERS, and VALENTINO, JJ., concur.