Opinion
December 15, 1986
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is affirmed.
The defendant's motion to suppress a pen gun found on his person was properly denied. In People v. Class ( 63 N.Y.2d 491, revd 475 U.S. 106, on remand 67 N.Y.2d 431), the Court of Appeals held that the nonconsensual entry of a police officer into an automobile to determine its vehicle identification number (hereinafter VIN), based solely on a stop for a traffic infraction, is violative of the State Constitution (People v. Class, supra, at p 493). In the present case, however, the nonconsensual entry by the police into the vehicle operated by the defendant was predicated on more than his commission of a traffic infraction. After the police had stopped the defendant for failure to obey a stop sign, the defendant was unable to produce a driver's license. In addition, by peering through the windshield into the car, an act which did not constitute a search in and of itself (People v. Class, supra, at pp 494-495; see also, People v. Cruz, 34 N.Y.2d 362, 370), a police officer was able to observe that the VIN plate affixed to the dashboard had apparently been altered. This observation, standing alone, was sufficient to establish probable cause for the defendant's arrest (see, Penal Law § 170.70), and gave the officers reason to suspect other criminal activity (cf. People v Class, supra, at p 496). Although the officers did not arrest the defendant immediately, acting upon their reasonably heightened suspicions, they entered the vehicle by opening the door to examine the VIN affixed to the door jamb and then, upon finding that the last character of that VIN had been "scratched out" opened the hood and examined the VIN on the engine. Noting that the VIN on the engine differed from the VIN on the dashboard, they then placed the defendant under arrest, and a search incident to that arrest revealed the presence of the pen gun on the defendant's person.
Under these circumstances, the defendant's reliance on People v. Class (supra) is clearly misplaced. Here, the predicate for the officers' nonconsensual entry into the vehicle for the purpose of determining the VIN was considerably more than the mere fact that the defendant had been stopped for a traffic infraction. To the contrary, the actions of the police were at all times reasonably related in scope and intensity to the information available to them as their encounter with the defendant unfolded (see, People v. De Bour, 40 N.Y.2d 210; People v. Finlayson, 76 A.D.2d 670, lv denied 51 N.Y.2d 1011, cert denied 450 U.S. 931). Thus, the arrest of the defendant was amply supported by probable cause, and the seizure of the pen gun in the course of a search of his person incident to that arrest was lawful (see, People v. Belton, 55 N.Y.2d 49, 52-53). Bracken, J.P., Niehoff, Eiber and Sullivan, JJ., concur.