People v. Francois
| Decision Date | 27 November 1989 |
| Parties | The PEOPLE, etc., Respondent, v. Yves FRANCOIS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Paul Liu, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Anthea H. Bruffee and David O. Leiwant, of counsel), for respondent.
Before THOMPSON, J.P., and BRACKEN, RUBIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered November 30, 1987, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
At a suppression hearing, a police officer testified that after the vehicle in which the defendant was traveling was stopped for a traffic infraction he approached the passenger side of the vehicle and, upon shining his flashlight inside, noticed a bulge in the defendant's clothing at his waist. He asked the defendant to step outside the vehicle and removed a gun from beneath the defendant's sweater.
On appeal, the defendant contends that the initial stop by the police officers was improper because the traffic violation was merely used as a pretext to investigate unrelated activities. This argument was not advanced at the hearing as a ground for suppressing the weapon and therefore is not preserved for appellate review (see, People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920; People v. Rondan, 116 A.D.2d 750, 497 N.Y.S.2d 938). In any event, the hearing court credited the officer's testimony that the vehicle was stopped for failing to signal a turn, and we find no basis in this record to disturb the determination that the vehicle was lawfully stopped (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Williams, 137 A.D.2d 569, 524 N.Y.S.2d 309; cf., People v. Llopis, 125 A.D.2d 416, 509 N.Y.S.2d 135).
The evidence adduced at the hearing supports the suppression court's determination that the defendant's Fourth Amendment rights were not violated when he was ordered to exit the vehicle. Police officers are authorized, as a precautionary measure, to order occupants out of a vehicle that is lawfully stopped for a traffic violation . The defendant...
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