Opinion
08-10-2016
The PEOPLE, etc., respondent, v. Eugene GRAVES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Gibson, Dunn & Crutcher LLP [Brian R. Morgenstern ], of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Gibson, Dunn & Crutcher LLP [Brian R. Morgenstern ], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered December 19, 2013, convicting him of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third degree, and resisting arrest, 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.
The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the physical evidence. “In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” (People v. Garcia, 20 N.Y.3d 317, 321, 959 N.Y.S.2d 464, 983 N.E.2d 259, citing People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 ; see Michigan v. Long, 463 U.S. 1032, 1047–1048, 103 S.Ct. 3469, 77 L.Ed.2d 1201 ; Pennsylvania
v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 ). However, a police officer's questions regarding whether an individual has a weapon is a common-law inquiry which must be supported by founded suspicion (see People v. Garcia, 20 N.Y.3d at 324, 959 N.Y.S.2d 464, 983 N.E.2d 259 ; People v. Brannon, 16 N.Y.3d 596, 601–602, 925 N.Y.S.2d 393, 949 N.E.2d 484 ; People v. De Bour, 40 N.Y.2d 210, 225, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Cantor, 36 N.Y.2d 106, 112–113, 365 N.Y.S.2d 509, 324 N.E.2d 872 ). In addition, a pat-down search of a suspect's outer clothing is reasonable and constitutionally permissible when an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety (see People v. Shuler, 98 A.D.3d 695, 696, 949 N.Y.S.2d 758 ; People v. Davenport, 92 A.D.3d 689, 690, 939 N.Y.S.2d 473 ). Among the factors relevant to determining whether a pat-down search is justified are “the substance and reliability of the report that brought the officers to the scene, the nature of the crime that the police are investigating, the suspect's behavior and the shape, size, and location of any bulges in the suspect's clothing” (People v. Shuler, 98 A.D.3d at 696, 949 N.Y.S.2d 758 ).
Under the circumstances of this case, including, among other things, the time of night, the fact that the livery cab in which the defendant was a passenger was speeding, the neighborhood, the officer's observations of the defendant make what he interpreted as a furtive movement indicating that he was hiding something, the defendant's refusal to answer questions or look at the officer in comparison to the other passenger's animated responses, and the abnormal bulge in an unusual spot near the defendant's groin, the officer was justified in inquiring about the bulge and performing the minimally intrusive measure of touching the bulge to verify that it was, in fact, a gun and not, as the defendant stated, cash (see People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ; People v. De Bour, 40 N.Y.2d at 221, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Issac, 107 A.D.3d 1055, 1058, 968 N.Y.S.2d 631 ; People v. Woonbong Chang, 275 A.D.2d 423, 424, 712 N.Y.S.2d 624 ; People v. Moret, 240 A.D.2d 321, 321–322, 659 N.Y.S.2d 445 ; People v. Brunson, 166 A.D.2d 204, 204, 564 N.Y.S.2d 100 ).
The defendant's contention that his conviction of aggravated assault in the State of Pennsylvania did not qualify as a predicate violent felony pursuant to Penal Law § 70.08 on the ground that the Pennsylvania statute prohibits both an attempt to commit an aggravated assault and a completed aggravated assault is without merit (see People v. Muniz, 74 N.Y.2d 464, 467, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; People v. Gonzalez, 61 N.Y.2d 586, 588, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ; People v. Horvath, 81 A.D.3d 850, 851, 916 N.Y.S.2d 230 ; People v. Boston, 79 A.D.3d 1140, 913 N.Y.S.2d 344 ; People v. Thomas, 71 A.D.3d 1061, 897 N.Y.S.2d 244 ). Since the Pennsylvania statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors, the sentencing court was permitted to look “beyond the statute and scrutinize the accusatory instrument” (People v. Gonzalez, 61 N.Y.2d at 590, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ; see People ex rel. Goldman v. Denno, 9 N.Y.2d 138, 211 N.Y.S.2d 403, 172 N.E.2d 663 ; People ex rel. Gold v. Jackson, 5 N.Y.2d 243, 245–246, 183 N.Y.S.2d 799, 157 N.E.2d 169 ; People v. Horvath, 81 A.D.3d at 851, 916 N.Y.S.2d 230 ). Here, the Pennsylvania accusatory instrument essentially tracked the language of the Pennsylvania aggravated assault statute (see 18 Pa.C.S.A. § 2702 [a][3] ), stating that the defendant “did attempt to cause or intentionally or knowingly cause bodily injury,” and that the defendant punched a police officer in the face, causing swelling, and bit the police officer in the right and left hands, causing cuts to his hands. Thus, the accusatory instrument indicated that the defendant committed a completed aggravated assault, which, if committed in New York, would constitute a felony (cf. People v.
Sair, 173 A.D.2d 578, 579, 570 N.Y.S.2d 312 ).