People v. Sira
| Decision Date | 05 October 1998 |
| Citation | 254 A.D.2d 311,680 N.Y.S.2d 101 |
| Parties | 1998 N.Y. Slip Op. 8564 The PEOPLE, etc., Respondent, v. Rubin SIRA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Edwin Ira Schulman, Kew Gardens, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Robin A. Forshaw, and Patrick L. O'Connor of counsel), for respondent.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered July 28, 1995, convicting him of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal impersonation in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Leahy, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The police lawfully stopped the vehicle in which the defendant was a passenger upon observing various traffic infractions (see, People v. Ellis, 62 N.Y.2d 393, 477 N.Y.S.2d 106, 465 N.E.2d 826; Matter of Marcellius H.R., 229 A.D.2d 578, 646 N.Y.S.2d 154). There is no basis for concluding that the officers used the traffic infractions as a mere pretext to investigate unrelated criminal activity (see, People v. Gales, 187 A.D.2d 606, 590 N.Y.S.2d 105). Under the circumstances, the officer's direction to the defendant to exit the vehicle was a permissible and appropriate precautionary measure (see, People v. Robinson, 74 N.Y.2d 773, 545 N.Y.S.2d 90, 543 N.E.2d 733, cert. denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376; Matter of Marcellius H.R., supra; People v. Rosario, 94 A.D.2d 329, 465 N.Y.S.2d 211). The officer was justified in retrieving the law enforcement badge which he observed on the floor of the vehicle as the defendant exited and had probable cause to arrest the defendant when he then observed a gun. Because the stop and arrest were proper, the subsequent recovery of 62 kilograms of cocaine from the vehicle, pursuant to a search warrant, was lawful. Consequently, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence.
Viewing the evidence in the light most favorable to the prosecution ...
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