The People, Respondent, v Stanley Hardee, Appellant.BriefN.Y.October 11, 2017APL-2015-00170 To be argued by JESSICA OLIVE (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - STANLEY HARDEE, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 danyappeals@dany.nyc.gov DANA POOLE JESSICA OLIVE ASSISTANT DISTRICT ATTORNEYS Of Counsel APRIL 28, 2016 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 QUESTIONS PRESENTED .............................................................................................. 2 INTRODUCTION................................................................................................................ 2 THE SUPPRESSION HEARING ..................................................................................... 4 The People’s Case ....................................................................................................... 4 The Suppression Court’s Decision ........................................................................... 9 The Appellate Division’s Decision ......................................................................... 10 POINT THE RECORD SUPPORTS THE LOWER COURTS’ RULINGS THAT THE LIMITED SEARCH FOR WEAPONS BEHIND THE FRONT PASSENGER SEAT OF THE VEHICLE WAS REASONABLE, PUTTING THAT RULING BEYOND THIS COURT’S REVIEW; IN ANY EVENT, THE TOTALITY OF THE CIRCUMSTANCES JUSTIFIED THE SEARCH. ................................. 12 CONCLUSION ................................................................................................................... 34 TABLE OF AUTHORITIES STATE CASES People v. Batista, 88 N.Y.2d 650 (1996) ............................................................................ 24 People v. Brown, 25 N.Y.3d 973 (2015) ............................................................................ 17 People v. Carvey, 89 N.Y.2d 707 (1997) ................................. 11, 13-14, 19, 25, 27, 29-33 People v. Cheek, 18 A.D.3d 475 (2d Dept. 2005), lv. denied, 5 N.Y.3d 786 (2005) .................................................................................... 28 People v. Chestnut, 51 N.Y.2d 14 (1980) .......................................................................... 25 People v. DeBour, 40 N.Y.2d 210 (1976) ......................................................................... 22 People v. Fludd, 20 A.D.3d 351 (1st Dept. 2005), lv. denied, 5 N.Y.3d 852 (2005) ........................................................................ 14, 19, 28 People v. Garcia, 20 N.Y.3d 317 (2012) ...................................................................... 22, 31 People v. Garrett, 23 N.Y.3d 878 (2014) ........................................................................... 28 People v. Gray, 86 N.Y.2d 10 (1995) ................................................................................. 28 People v. Hackett, 47 A.D.3d 1122 (3d Dept. 2008) ....................................................... 13 People v. Hardee, 126 A.D.3d 626 (1st Dept. 2015) ............................. 4, 9-11, 14, 16-22 People v. Hawkins, 45 A.D.3d 989 (3d Dept. 2007), lv. denied, 9 N.Y.3d 1034 (2008) .................................................................................. 28 People v. Hollman, 79 N.Y.2d 181 (1992) ........................................................................ 22 People v. March, 257 A.D.2d 631 (2d Dept. 1999), lv. denied, 93 N.Y.2d 973 (1999) .................................................................................. 14 People v. Moore, 32 N.Y.2d 67 (1973) .............................................................................. 25 People v. Mundo, 99 N.Y.2d 55 (2002) ............................. 11, 13-14, 18-19, 25, 27, 32-33 People v. Newman, 96 A.D.3d 34 (1st Dept. 2012), lv. denied, 19 N.Y.3d 999 (2012) .................................................................................. 24 -ii- People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011), aff’d, 18 N.Y.3d 825 (2011) .................................................................. 13, 17, 19, 21, 28 People v. Ponce, 182 A.D.2d 1103 (4th Dept. 1992), lv. denied, 80 N.Y.2d 836 (1992) ............................................................................ 14, 28 People v. Robinson, 74 N.Y.2d 773 (1989) ....................................................................... 31 People v. Torres, 74 N.Y.2d 224 (1989) .......................................................... 13, 24, 26-33 People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996), lv. denied, 90 N.Y.2d 865 (1997) ............................................................................ 14, 18 People v. Wheeler, 2 N.Y.3d 370 (2004) ........................................................................... 17 People v. Williams, 17 N.Y.3d 834 (2011)......................................................................... 17 STATE STATUTES AND CONSTITUTIONAL PROVISIONS CPL § 470.05 ......................................................................................................................... 28 CPL § 470.35 ......................................................................................................................... 17 N.Y. CONST. Art. VI § 3 ...................................................................................................... 17 Penal Law § 265.01 ............................................................................................................... 30 Penal Law § 265.02 ............................................................................................................... 30 Penal Law § 265.02(3) ............................................................................................................ 3 Penal Law § 265.03 ......................................................................................................... 30, 32 Penal Law § 265.03(3) ........................................................................................................ 1, 3 Penal Law § 265.04 ............................................................................................................... 30 Penal Law § 265.05 ............................................................................................................... 30 Penal Law § 265.06 ............................................................................................................... 30 Penal Law § 270.25 ............................................................................................................... 32 VTL § 1227 ........................................................................................................................... 32 -iii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- STANLEY HARDEE, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Rolando T. Acosta of the Appellate Division, First Department, granted on June 18, 2015, defendant Stanley Hardee appeals from a March 26, 2015 order of that court affirming defendant’s January 22, 2013 judgment of conviction of the Supreme Court, New York County (Charles Solomon, J. [suppression hearing], Michael Obus, J. [guilty plea]). By that underlying judgment, defendant was convicted, upon his plea of guilty, of one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]), and sentenced, as a persistent violent felony offender, to an indeterminate term of 16 years to life in prison. Defendant is currently incarcerated pursuant to the judgment against him. QUESTIONS PRESENTED 1. Whether the record supports the lower courts’ ruling that, after the police removed the occupants of defendant’s vehicle during a lawful traffic stop, the totality of the circumstances entitled them to conduct a limited search for weapons behind the vehicle’s front passenger seat. The Appellate Division, First Department, determined that “defendant’s furtive behavior, suspicious actions in looking into the back seat on multiple occasions and refusal to follow the officers’ legitimate directions” justified the officer’s limited search of the area directly behind the front passenger seat. 2. Whether this Court should change the legal standard for protective vehicle searches either by requiring the presence of two dispositive factors—that defendant appear to hide something in the car and demonstrate an immediate willingness to use a weapon—or by requiring the officers to also possess “reasonable suspicion” of a crime. Defendant did not raise this question below, so neither the hearing court nor the Appellate Division, First Department, addressed it. INTRODUCTION At approximately 1:30 a.m. on July 31, 2010, three police officers pulled over defendant after witnessing him speeding down Lexington Avenue in the 25th Precinct of Manhattan, an area that had recently experienced a spike in violent crime. When the officers approached the car, defendant was extremely nervous and repeatedly -2- looked at a maroon shopping bag behind the passenger seat. He refused to follow the officers’ numerous directions to stop looking around and step out of the car. Once defendant finally exited the vehicle, he continued looking over his left shoulder into the car and also looked down the street as if he were plotting an escape path. At this time, he was approximately three feet from the vehicle’s backseat. One of the officers, “concerned about weapons” based on defendant’s behavior, entered the car to search behind the front passenger seat. The officer picked up the maroon shopping bag, felt something heavy in the bag, and believed it was a weapon. The officer then looked inside the bag and saw the handle of a semiautomatic 9-millimeter Luger firearm sticking halfway out of a smaller black bag. The firearm was loaded and operable. After some resistance, defendant was arrested. By New York County Indictment Number 5558/2010, filed on November 19, 2010, defendant was charged with one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]) and one count of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[3]). Defendant moved to suppress the firearm obtained as a result of the car search, and following a hearing held on June 1, 2011, the Honorable Charles Solomon issued a written decision denying that motion on November 1, 2011. Defendant pleaded guilty as noted above in front of the Honorable Michael J. Obus on October 3, 2012. On January 22, 2013, Justice Obus adjudicated defendant a persistent violent felony offender based on two previous robbery convictions, and sentenced him as noted above. -3- On appeal to the Appellate Division, First Department, defendant claimed that the court erred in denying his motion to suppress the firearm. With Justice Acosta’s lone dissent, the majority of the reviewing panel affirmed the judgment of conviction against defendant on March 26, 2015. People v. Hardee, 126 A.D.3d 626 (1st Dept. 2015) (A. 3-8). On June 18, 2015, Justice Acosta granted defendant’s application for leave to appeal that decision. On July 21, 2015, this Court designated this appeal for examination of the merits pursuant to Rule 500.11 (“SSM” review). On December 11, 2015, this Court terminated that review and ordered full briefing. On appeal to this Court, defendant contends that the police officer improperly performed a limited search of the area behind the passenger seat of his car, mandating suppression of the firearm recovered there. THE SUPPRESSION HEARING The People’s Case In the early morning hours of July 31, 2010, Sergeant CHRISTOPHER SIANI, Officer STEPHEN LOUD,1 and Officer Kieran Kailer were patrolling the area around Lexington Avenue and 124th Street in the 25th Precinct due to a spike in violent crimes in the area (A. 73-74, 94, 133-34, 159).2 At approximately 1:30 a.m., the officers were driving southbound in their unmarked police vehicle on Lexington Avenue with Officer Kailer behind the wheel (A. 73-74, 94, 133-34, 159). The 1 Officer Loud was subsequently promoted to Sergeant (A. 131). 2 Parenthetical references preceded by “A” refer to pages in appellant’s appendix. -4- officers observed a four-door gray sedan “flying” past their car “at a high rate of speed”—approximately 50 to 60 miles per hour, in a 30 mile-per-hour zone (A. 74-75, 79, 95, 97-98, 134-35, 159). The driver of the sedan was weaving in and out of traffic as if he was “in a big hurry” and in a rush to get somewhere and was changing lanes without signaling (A. 76, 98, 135-36). It took the officers six or seven blocks to catch up with the sedan (A. 76, 97). With lights and sirens on, the officers pulled over the sedan to the right side of Lexington Avenue at 117th Street (A. 76-77, 99-100, 136, 159). Officer Kailer and Sergeant Siani approached the sedan on the driver’s side while Officer Loud went to the passenger side (A. 76, 78, 101-102, 137, 159). Defendant was in the driver’s seat and Alice Simmons was seated in the front passenger’s seat (A. 78-79, 137, 160). Defendant was “very nervous” (A. 79). Officer Kailer asked defendant why he was driving so quickly (A. 79-80, 138). Defendant was “wide-eyed” and continually looked around the car (A. 79, 105-106). Defendant glanced at the back of the vehicle two to four times (A. 81). Defendant would look at Officer Kailer, Sergeant Siani, and Simmons and then look behind him into the back seat (A. 79-81). Defendant was looking around so much that “his head was, like, spinning around” (A. 81). Officer Kailer had to tell him repeatedly to “calm down,” “sit still,” and “concentrate” because defendant was “pretty animated” (A. 79-81). Officer Kailer specifically told defendant to stop moving three to four times (A. 81). -5- Officer Kailer asked defendant if anything was in two Styrofoam cups located in the center console (A. 80, 105, 107, 138). Defendant stated that there was a little bit of soda or alcohol in the cups, and Officer Kailer reassured him, “Listen, it’s not a big deal, relax” (A. 80, 106-107). Officer Kailer told him, “If it’s just a little bit of alcohol, it’s not a big deal, but stop looking around” (A. 80). Sergeant Siani did not think that defendant was “drunk,” but instead thought that he “might be high or something” because “he was so hyper” (A. 106). At this point, Officer Loud, who was standing on the passenger side of the car, bent down to get a better view inside the car (A. 138). Defendant turned away from Officer Kailer and looked in the back seat behind the front passenger seat (A. 139). Officer Kailer asked defendant to step out of the car, but defendant “refused” and “shook his head like I’m not getting out of the car” (A. 81-82, 108). Officer Kailer told him, “Listen, you have to step out of the car” (A. 82, 108, 139). After Officer Kailer repeated himself twice, Officer Loud became “concerned” and bent down again to look inside the vehicle (A. 139). While Officer Kailer was speaking to him, defendant turned over his right shoulder again and looked behind the front passenger seat (A. 139-40). Officer Loud then saw that defendant was looking at a maroon shopping bag behind the front passenger seat (A. 140, 142, 175). Officer Kailer asked defendant to step out of the car approximately three times before he complied (A. 82, 108-109, 139-40, 161). Once defendant exited the vehicle, Officer Kailer promptly frisked him (A. 83, 109, 140, 163). This signaled to Officer -6- Loud that Officer Kailer was concerned about weapons (A. 141). Defendant was compliant during the frisk, but he was still nervous (A. 83). Officer Kailer and Sergeant Siani continued to reassure him and told him to relax (A. 83, 109, 176). After he frisked defendant, Officer Kailer directed defendant to put his hands in his front pants pockets and step to the back bumper of the vehicle (A. 83, 110, 140, 163). Defendant leaned on the back bumper of the vehicle, approximately three feet from the vehicle’s backseat (A. 110, 163, 175). He looked over his left shoulder into the car at least two times (A. 84-85, 113). After looking at Sergeant Siani and then looking over his right shoulder down Lexington Avenue, defendant began staring at the corner of 116th Street (A. 84-85, 113-114). Sergeant Siani thought “that was going to be the path he was going to run at” (A. 84-85, 113-114). Based on defendant’s failure to “comply…at first” with Officer Kailer’s multiple requests to step out of the car, as well as Officer Kailer’s “tone of…voice” and his decision to frisk defendant, Officer Loud was “concerned about weapons” (A. 142). And given the way defendant had been “moving around” outside the car, Officer Loud was worried that the weapon was in defendant’s “reachable area” (A. 142). Specifically, Officer Loud believed there “would be a weapon” in the bag defendant had been “looking at” in the back seat (A. 142). With both defendant and Simmons out of the car, Officer Loud entered the car through the open front passenger door, crouched on his knees on the front passenger seat, and leaned over to search behind it (A. 141-43, 170). Officer Loud spotted the -7- maroon shopping bag directly behind the passenger seat, so he grabbed it by a handle and tugged it (A. 142, 144, 170). Officer Loud felt something heavy in the bag and believed it was a weapon and possibly a firearm (A. 143-44). Officer Loud then looked inside the bag and saw another smaller black bag (A. 144, 171). The handle of a semiautomatic firearm was sticking halfway out of that bag (A. 144, 158). Officer Loud then gave the bag another tug to make sure the weight corresponded with the weight of a real firearm (A. 145). Meanwhile, at the back bumper of the car, Officer Kailer repeatedly told defendant statements like “just focus on me,” “stop moving,” “I’m talking to you,” “relax,” “stop looking back,” “stop looking around,” and “just talk to me” (A. 84-85, 141). Sergeant Siani thought “something [wa]s wrong” and that they had “to get this guy cuffed because something [wa]s up” (A. 85-86, 112). Finally, Officer Kailer told defendant, “If you look back again, I’m going to handcuff you” (A. 85, 111). Almost immediately, defendant looked right back into the car (A. 85). Sergeant Siani got one handcuff on defendant before he tensed up and began resisting (A. 86, 114-15). Defendant tried to get Sergeant Siani off of him, and Sergeant Siani thought that defendant was trying to escape (A. 115-16). Sergeant Siani thought, “[t]he way he was acting, something was coming. Either I was going to get punched. I felt I was going to get hit, kicked, something was going to happen” (A. 116). Sergeant Siani was afraid that defendant “was going to run or fight” (A. 125). -8- When Sergeant Siani began handcuffing defendant, Officer Loud placed the gun back down in the sedan, stuck his head out of the car, and yelled either “gun” or the officers’ code for gun: “lunch” (A. 86, 90, 117, 123-24, 145-46, 171). Officer Loud then ran over to assist Officers Siani and Kailer in handcuffing defendant (A. 86-87, 117, 145-47, 171-72). All three officers were unable to handcuff defendant (A. 87, 89, 147). A nearby uniformed police officer came over to help and the officers had to call for additional assistance before they were able to handcuff defendant (A. 88-90, 117, 147, 172). When the officers processed the firearm, they discovered that it was loaded (A. 148- 49, 158).3 The Suppression Court’s Decision On November 1, 2011, the Honorable Charles Solomon issued a written decision denying suppression of the firearm and other physical evidence obtained as a result of the stop (A. 33-46).4 Preliminarily, the court determined that the testimony of both Sergeant Siani and Officer Loud was credible. The court made findings of fact entirely consistent with the evidence provided by the People, including the fact 3 Defendant’s fiancée, Alice Simmons, testified for the defense during the suppression hearing. The People have omitted a description of her testimony—and the People’s case rebutting it—because the trial court found it wholly incredible and defendant has never contested that finding on appeal. See Hardee, 126 A.D.3d at 628 (“Nor is there any basis for disturbing the court’s finding that defendant’s sole witness, his fiancée…was not believable”). 4 The court also granted defendant’s motion to suppress certain post-arrest statements he made in the absence of Miranda warnings (A. 46). -9- that “it appeared to [Officer] Loud that defendant had been looking” at the maroon shopping bag on the floor of the backseat behind the front passenger seat (A. 36, 38, 42). Thus, the court found that “[d]efendant’s actions prior to being pulled over, as well as after, gave the police reasonable cause to believe that there was a weapon in the car which presented a threat to their safety” (A. 44). Specifically, the court determined that “[d]efendant’s nervousness, his persistent movements inside the vehicle, his repeated looking into the backseat and his refusal to follow Kailer’s directions, led Loud to believe there was a weapon in the car and specifically, that it might be in the bag on the floor behind the passenger seat” (A. 45). The court also noted that Officer Loud had conducted a minimally intrusive search by going directly to the area of concern, i.e., behind the passenger seat, and had weighed the bag to determine whether it was consistent with the presence of a firearm before opening it (A. 45).5 The Appellate Division’s Decision The majority of the reviewing panel of the Appellate Division, First Department, affirmed Justice Solomon’s decision on March 26, 2015. People v. Hardee, 126 A.D.3d 626 (1st Dept. 2015) (A. 3-8). The court found that defendant’s 5 On July 10, 2012, the court denied defendant’s motion to reargue the suppression issue, stating that “the decision in this case comported with the law” and that “the issues were fully explored and considered by the court” (A. 63). -10- suspicious behavior during the lawful traffic stop justified the officer’s limited search of the area directly behind the front passenger seat of the car. Id. at 628 (citing People v. Mundo, 99 N.Y.2d 55, 59 [2002]; People v. Carvey, 89 N.Y.2d 707, 709-711 [1997]) (A. 5-6). The court made factual findings consistent with the People’s evidence, including the fact that defendant “continued to look over his shoulder toward the area directly behind the front passenger seat, where a shopping bag in which a gun was later found was located,” and that Officer Loud believed a weapon might be in the bag because it was “in the area where defendant kept glancing.” Id. at 627 (A. 4-5). The court determined that “defendant’s furtive behavior, suspicious actions in looking into the back seat on multiple occasions and refusal to follow the officers’ legitimate directions, went beyond mere nervousness.” Id. at 628 (A. 5-6). Justice Acosta dissented, finding that there were no “objective indicators that could lead to a reasonable conclusion that there was a substantial likelihood that a weapon was located in defendant’s car.” Id. at 628-29 (A. 7-8). Specifically, Justice Acosta stated that “[t]here was no testimony that defendant looked in the specific direction of the bag or even the floor.” Id. at 628 (A. 7). Thus, he believed that “there was nothing that could be analogized to movements within a car to reach or conceal something, which could reasonably have been taken to indicate the presence of a concealed weapon.” Id. at 628 (A. 7). -11- POINT THE RECORD SUPPORTS THE LOWER COURTS’ RULINGS THAT THE LIMITED SEARCH FOR WEAPONS BEHIND THE FRONT PASSENGER SEAT OF THE VEHICLE WAS REASONABLE, PUTTING THAT RULING BEYOND THIS COURT’S REVIEW; IN ANY EVENT, THE TOTALITY OF THE CIRCUMSTANCES JUSTIFIED THE SEARCH (Answering Defendant’s Brief). After the police pulled over defendant’s car for going twice the speed limit and driving dangerously, they encountered a “wide-eyed” and “animated” individual who was so “hyper” that one of the officers thought he was high. Defendant continually looked around the car, including at a shopping bag in the back seat, while disregarding the officers’ repeated instructions to stop moving and to get out of the car. Once outside of the car, defendant continued to look over his left shoulder into the back of the car and also looked as if he was planning an escape route. The officer with him was convinced defendant would try to “run or fight.” Another officer at the scene conducted a limited search behind the front passenger seat of the vehicle where defendant had been looking while inside and outside the car. There, the officer found a shopping bag inside of which was a loaded semiautomatic gun. Both the hearing court and the Appellate Division determined that the protective car search was reasonable due to defendant’s nervousness, persistent refusal to follow the officers’ directions, and suspicious movements inside and outside the vehicle, including his frequent glances at the shopping bag in the backseat. -12- On appeal to this Court, defendant asserts that the totality of the circumstances here was insufficient to justify the protective search that led to the recovery of the gun from the shopping bag behind the front passenger seat. In that regard, defendant insists that there was nothing furtive about his behavior and that his demeanor suggested nothing more than the “mere nervousness” related to being pulled over with an alcoholic beverage in the front seat console. That claim, however, presents a mixed question of law and fact that is beyond this Court’s review because there is ample record support for both the lower courts’ determinations to the contrary. Defendant, in an effort to identify a legal issue for review, thus goes on to ask this Court to alter the test that has been applied in evaluating the propriety of protective car searches since 1997. In that regard, this Court’s time-tested and uncomplicated test may be stated simply: Police officers may perform a limited protective search of a lawfully stopped vehicle if they reasonable conclude that there is a “substantial likelihood” of a weapon in the car that poses an “actual and specific danger to the officers’ safety.” See People v. Mundo, 99 N.Y.2d 55, 58-59 (2002); People v. Carvey, 89 N.Y.2d 707, 711 (1997); People v. Torres, 74 N.Y.2d 224, 231 n.4 (1989); see also Mundo, 99 N.Y.2d at 62 (dissent). For almost two decades since this Court enunciated this standard in Carvey, this straightforward test has been applied by all of the Appellate Division Departments to evaluate numerous searches that, of course, involved a variety of factual scenarios. See, e.g., People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011), aff’d, 18 N.Y.3d 825 (2011); People v. Hackett, 47 -13- A.D.3d 1122, 1224 (3d Dept. 2008); People v. Fludd, 20 A.D.3d 351, 353 (1st Dept. 2005), lv. denied, 5 N.Y.3d 852 (2005); People v. March, 257 A.D.2d 631 (2d Dept. 1999), lv. denied, 93 N.Y.2d 973 (1999); People v. Vehap, 234 A.D.2d 210 (1st Dept. 1996), lv. denied, 90 N.Y.2d 865 (1997); People v. Ponce, 182 A.D.2d 1103 (4th Dept. 1992), lv. denied, 80 N.Y.2d 836 (1992). The search at issue in this case was evaluated using this legal standard by the hearing court (A. 44), the Appellate Division majority (Hardee, 126 A.D.3d at 628 [A.5-6]), and the Appellate Division dissenter (Hardee, 126 A.D.3d at 628-29 [A.7-8]). Even defendant agreed before the hearing court that this was the general legal standard to apply (A. 15-17). In fact, defendant acknowledges the applicability of this test even in his brief to this Court (Defense Brief: 22). Nevertheless, defendant asks this Court to change its test for protective car searches by burdening it with additional requirements, which are at best unnecessary and at worst confusing and counter-productive. In that regard, in Point I, defendant asks this Court to require the presence of two “dispositive” facts, namely, that the “defendant appear[ ] to hide something inside the car and demonstrate[ ] an immediate willingness to use a weapon” (Defense Brief: 3, 16 n.3, 16-18 [emphasis in original]). Defendant’s suggestion on that score, however, not only ignores the fundamental requirement of “reasonableness” under the “totality of the circumstances,” but also misrepresents the import of this Court’s rulings in Carvey and Mundo. Then, in Point II, defendant contends for the first time ever that even before applying the -14- Carvey/Mundo test for protective vehicle searches, the officer must first have possessed “reasonable suspicion” that defendant committed a crime. Not only is this new legal argument entirely unpreserved, it is an entirely redundant standard for evaluating protective searches of vehicles for weapons. In short, defendant provides no basis for this Court to second-guess the Appellate Division ruling. Thus, this Court should affirm. A. The Appellate Division’s decision is beyond this Court’s review. Defendant asks this Court to reverse the lower courts’ rulings that the protective car search was proper and that the gun recovered by the police should not have been suppressed. Specifically, defendant asks this Court to overrule the determination by the Appellate Division majority that the police were reasonable to conclude that there was a substantial likelihood that a weapon was located behind the front passenger seat of defendant’s car, and that, given defendant’s behavior, the weapon posed an actual and specific danger to them. That question, however, presents a mixed question of law and fact. Thus, the only question properly before this Court is whether there is record support for the lower courts’ rulings. And, as will be demonstrated below, there is more than ample support for those determinations. In an effort to paint his claim as anything other than a mixed question of law and fact, defendant insists that the “dispute between the majority and the dissent” rested on the governing legal standard (Defense Brief: 23). That claim is, however, -15- demonstrably false. After all, Justice Acosta articulated several times in his one- paragraph dissent that the governing legal standard required “a reasonable conclusion” that there was a “substantial likelihood” of a weapon in the car and that it presented an “actual and specific danger” to the officers’ safety. Hardee, 126 A.D.3d at 628 (dissent) (A. 7-8). Likewise, the majority made clear that the facts must “support[ ] a reasonable conclusion that a weapon that posed an actual and specific danger to [the officers’] safety was secreted” in the car. Id. at 628 (majority) (A. 5-6). Thus, Justice Acosta relied on the same legal standard as the majority. In truth, the only distinction between the determination of the dissenting Appellate Division Justice and the Appellate Division majority was a factual one. The Appellate Division majority’s affirmance relied, in part, on Loud’s testimony that he observed a “bag” “on the floor behind the passenger seat in the area where defendant kept glancing.” Hardee, 126 A.D.3d at 627 (A. 5). Indeed, the majority noted that when police initially approached defendant in the front seat, he “repeatedly looked in the back seat,” and when he was removed from the car, he “continued to look over his shoulder toward the area directly behind the front passenger seat.” Id. at 627 (A. 4). In contrast, the dissenting Justice found that “[t]here was no testimony that defendant looked in the specific direction of the bag or even the floor.” Hardee, 126 A.D.3d at 628 (dissent) (A. 7). Before this Court, defendant does not go so far as the Appellate Division dissent by claiming that there was no evidence that defendant had looked in the -16- direction of the bag. Instead, contrary to the Appellate Division majority’s determination that his actions “went beyond mere nervousness,” defendant argues that his actions during the traffic stop demonstrated only “mere nervousness” (see Hardee, 126 A.D.3d at 628 [A. 6]; Defense Brief: 19-21). And defendant argues that the Appellate Division incorrectly found that his behavior was “furtive” (Hardee, 126 A.D.3d at 628 [A. 6]; see Defense Brief: 21). Of course, such distinctions present mixed questions of law and fact. Defendant seeks to avoid the limitations of such review by insisting that, in his own estimation, his claims do not involve “drawing differing inferences from the facts” (Defense Brief: 23). But that claim is belied by his arguments. After all, it is self-evident that the question of how to characterize defendant’s actions—as being the result of “mere nervousness” or “beyond mere nervousness”—and his behavior—“furtive” or “not furtive”—relies entirely on what inferences can and should be drawn from the facts. Thus, the only question properly before this Court is whether there is record support for the conclusion reached by the hearing judge and the four-Justice majority of the Appellate Division. See Omowale, 18 N.Y.3d at 827; see also People v. Brown, 25 N.Y.3d 973, 976 (2015); People v. Williams, 17 N.Y.3d 834, 836 (2011); People v. Wheeler, 2 N.Y.3d 370 (2004); N.Y. CONST. Art. VI § 3; CPL § 470.35. And there is, indeed, ample record support for the Appellate Division majority’s factual findings and legal conclusions. To begin, before the officers even -17- pulled him over, defendant was engaged in dangerous driving behavior that could have endangered other motorists and pedestrians. Specifically, the officers pulled over defendant after seeing him “flying” past their car at 50-60 miles per hour on a Manhattan street and weaving in and out of traffic without signaling (A. 74-75, 79, 95, 97, 134-35, 159). Then, in an area with a recent spike in violent crimes, the officers encountered inside the car a “very nervous,” “wide-eyed,” and “animated” driver who was so “hyper” that one of the officers thought he might be high (A. 79-81, 106). Defendant was looking around the vehicle so much that “his head was…spinning” (A. 80-81). Officer Kailer had to tell defendant to stop moving three to four times, but defendant repeatedly disregarded the officer’s instructions to “calm down,” “sit still,” and “concentrate” (A. 79-81). See Hardee, 126 A.D.3d at 628 (A. 6) (defendant refused “to follow the officers’ legitimate directions”). Such circumstances often contribute to a finding that police officers were justified in performing a protective vehicle search. See, e.g., Mundo, 99 N.Y.2d at 59 (holding based in part on the vehicle’s dangerous driving and the fact that the occupants “twice disobey[ed] the officers’ lawful commands”); Vehap, 234 A.D.2d at 211 (holding based in part on defendant’s nervous conduct, repeated refusal to comply with officer orders, and drugged appearance). Moreover, the Appellate Division found that the entire time that defendant was in the car, he engaged in “furtive behavior” and “suspicious actions” by “looking into -18- the back seat on multiple occasions,” including “the area directly behind the front passenger seat.” Hardee, 126 A.D.3d at 627-28 (A. 6). Specifically, Officer Siani saw defendant look behind the front passenger seat two to four times, and each of the two times that Officer Loud leaned down to get a better look inside the car, he saw defendant turn to look into the back seat (A. 81, 175-76). Indeed, given the fact that Officer Loud had testified, “It appeared to me he was looking at [the shopping] bag” (A. 139-40, 142, 175-76), the Appellate Division had every reason to credit Officer Loud’s testimony that, before the search, he saw a shopping bag on the floor behind the passenger seat, “in the area where defendant kept glancing.” Hardee, 126 A.D.3d at 627 (A. 5). Defendant’s repeated glances at the shopping bag are analogous to cases where vehicle occupants were seen attempting to hide or conceal something. See Mundo, 99 N.Y.2d at 59; Carvey, 89 N.Y.2d at 712; Fludd, 20 A.D.3d at 353; Omowale, 83 A.D.3d at 617. Just as an officer’s observation of what appears to be a secretive motion provides a strong indication that potentially dangerous contraband is present, a vehicle occupant’s preoccupation with a particular location inside the vehicle at the time of a stop provides a strong indication that he is seeking to conceal potentially dangerous contraband. As such, both types of actions may be equally indicative of a concealed weapon that may pose a danger to the officers. When the officers sought to remove defendant from the car, the dangerous implications of his suspicious behavior continued to escalate. As the Appellate -19- Division recognized, defendant initially refused to step out of the car, requiring Officer Kailer to repeat his instructions to do so two or three times (A. 81-82, 108, 139-40). See Hardee, 126 A.D.3d at 627 (A. 4). The Appellate Division also noted that once defendant was outside the car, he continued to disregard the officers’ orders to “stop moving” and “stop looking back” (A. 82, 84-85, 108-109, 113-14, 139-41, 161). Id. (A. 4). Instead, defendant repeatedly looked into the car. Id. (A. 4). He looked over his right shoulder down Lexington Avenue, possibly to plan an escape route, and, at least twice, he turned and looked over his left shoulder back into the car (A. 84-85, 113-14). This, of course, only compounded the suggestion that defendant was concerned about something he had hidden in the backseat (A. 79-82, 108-109, 139-141). Indeed, Sergeant Siani believed that “something [wa]s wrong,” and that defendant “was hiding something” and “was going to run or fight” (A. 86, 112, 125). Sergeant Siani thought that “something was coming,” “we got to get this guy cuffed because something is up,” and “[h]e’s not listening to us” (A. 85, 116). Ultimately, Officer Loud saw defendant “moving around” unsecured outside the car, in total contradiction of Officer Kailer’s orders and a mere three feet away from the bag defendant had been “looking at” repeatedly (A. 142). Based on a totality of the circumstances, Officer Loud was justifiably concerned that there “would be a weapon” in the bag that defendant could easily access and he reasonably decided to perform a limited protective search behind the front passenger seat (A. 142). Thus, the facts clearly necessitated the Appellate Division’s ultimate conclusion that -20- defendant’s behavior “supported a reasonable conclusion that a weapon that posed an actual and specific danger to their safety was secreted in the area behind the front passenger seat.” Hardee, 126 A.D.3d at 628. There being ample record support for the Appellate Division’s decision, this Court has no jurisdiction to review it on the merits. Despite the overwhelming record support for the Appellate Division’s decision, defendant nevertheless claims that defendant’s actions were mere “expressions of nervousness” (Defense Brief: 19-21). However, this claim is based on factual inferences that are not fully supported by the record. For example, defendant suggests that his initial refusal to exit the car could have been due to his nervousness about the presence of alcohol in the sedan (Defense Brief: 21). In support of that theory, defendant claims that once Officer Kailer assured him that the alcohol in the cups was “not a big deal,” he voluntarily exited the car (Defense Brief: 6, 19). In reality, however, Officer Kailer had not yet asked defendant to exit the car when he first told defendant that the alcohol was not a problem (A. 80-82). Instead, long after assuring defendant that the alcohol was “no big deal,” Officer Kailer still had to ask defendant to get out of the car three times, and defendant only did so after looking at the maroon shopping bag behind the front passenger seat (A. 140, 142, 175). In any event, the mere possibility of “innocent explanations for behavior do not prevent police officers from acting on their well-founded suspicions.” Omowale, 83 A.D.3d at 618. -21- Defendant also argues that the facts of this case are analogous to People v. Garcia, 20 N.Y.3d 317 (2012) (Defense Brief: 20), in which this Court determined that the police lacked a sufficient “founded suspicion of criminality” to justify asking the occupants of a lawfully stopped vehicle if they possessed any weapons. Finding that the evidence demonstrated that the occupants merely “appeared nervous,” this Court found record support for the Appellate Division’s decision to suppress the air guns ultimately recovered by police. 20 N.Y.3d at 324. Of course, the propriety of the common law inquiry in Garcia was decided under the DeBour/Hollman rubric (see Garcia, 20 N.Y.3d at 322 [citing People v. DeBour, 40 N.Y.2d 210 (1976), and People v. Hollman, 79 N.Y.2d 181 (1992)]), an entirely separate legal standard than the Carvey/Mundo test for protective vehicle searches that is at issue here. To the extent that the legal standard for a common law inquiry may even be analogized to a limited protective search of a vehicle, here, defendant did not appear merely “nervous” like the vehicle occupants in Garcia. Instead, defendant’s nervousness was accompanied by animated movements both inside and outside the car, his concentrated disregard of the officers’ instructions, and frequent glances at a maroon shopping bag in the back seat. Therefore, there was record support for the Appellate Division’s determination that in this case, unlike in Garcia, defendant’s behavior went “beyond mere nervousness.” Hardee, 126 A.D.3d at 628. Thus, Garcia is entirely inapplicable to this case. -22- In short, defendant’s focus on the facts that he “pull[ed] the car over” without fleeing and was frisked “without incident” (Defense Brief: 3, 19) do not negate the threatening nature of every other aspect of his encounter with the police during this traffic stop. Based on the totality of the circumstances, including defendant’s demeanor and fixation on a specific area of the car, Officer Loud reasonably concluded that a weapon was present there in the shopping bag behind the front passenger seat. Once defendant was “moving around” three feet away from the back seat, in defiance of the officers’ lawful orders, and appeared ready to “fight”—a conclusion borne out by defendant’s resistance to being handcuffed—this weapon presented an actual and specific danger. There being record support for the lower courts’ determinations, this Court should affirm. B. The Appellate Division correctly applied the appropriate legal standard. Not content with the obvious record support for the Appellate Division’s decision, defendant attempts to present this Court with two different proposals to change the legal standard for protective vehicle searches, despite their obvious lack of merit. First, defendant claims that this Court should only allow protective vehicle searches when the defendant “appeared to hide something inside the car and demonstrated an immediate willingness to use a weapon” (Defense Brief: 3, 16 n.3, 16-18 [emphasis in original]). Second, defendant asserts that before conducting a protective vehicle search, officers must also possess “reasonable suspicion” of a crime -23- (Defense Brief: 25-32). Not only were these arguments not raised before the hearing court or the Appellate Division, but they are entirely meritless. First, defendant asks this Court to turn away from its decades of precedent requiring searches to be “reasonable” under the Fourth Amendment and evaluated under a “totality of the circumstances,” and instead declare that the following facts are “dispositive”: that the “defendant appeared to hide something inside the car and demonstrated an immediate willingness to use a weapon” (Defense Brief: 3, 16 n.3, 16-18 [emphasis in original]).6 At the hearing, however, defendant made no such argument. In fact, before the hearing court, defendant acknowledged that the propriety of a protective vehicle search is subject to a totality of the circumstances review (see A. 15-19, 54). Therefore, defendant’s newfound argument is entirely unpreserved. Defendant’s stance before the hearing court was sensible. After all, it is clear that the standard set forth in Torres is subject to a totality of the circumstances review. See generally People v. Batista, 88 N.Y.2d 650, 653 (1996) (“The touchstone of any analysis of a governmental invasion of a citizen’s person…is reasonableness,” 6 Defendant’s suggestion that the First Department in People v. Newman, 96 A.D.3d 34 (1st Dept. 2012), lv. denied, 19 N.Y.3d 999 (2012), “required” “both a movement suggesting that a motorist was reaching for or hiding a weapon plus some suggestive factor” is incorrect (Defense Brief: 16 n.3). To the contrary, the First Department in Newman recognized merely that such factors are often sufficient to trigger a protective vehicle search, but not strictly necessary. Instead, the First Department acknowledged that the hearing court must examine the legality of a search in light of the totality of the circumstances. 96 A.D.3d at 42. In any event, the Newman decision is not before this Court. -24- which “turns upon the facts of each case”), citing People v. Chestnut, 51 N.Y.2d 14, 22 (1980), and People v. Moore, 32 N.Y.2d 67, 69 (1973). Now, though, defendant essentially maintains that the specific factual circumstances present in Mundo and Carvey must also be present in any other car stop before the police may legally conduct a protective vehicle search. However, simply because certain factual circumstances happened to be present in Mundo and Carvey does not mean that, without those facts, a protective search would be unreasonable or would only be based on a theoretical threat of harm. Instead, the facts of this case align perfectly with the fundamental concerns laid out by this Court in Carvey and Mundo. For example, in both Carvey and Mundo, this Court found that observations by the police of what appeared to be the defendants’ attempts to hide something sufficiently demonstrated a substantial likelihood that the object apparently being hidden was a weapon. See Mundo, 99 N.Y.2d at 59; Carvey, 89 N.Y.2d at 712. This Court also recognized that the defendants had exhibited signs that they might use the weapon against the police: in Carvey, the defendant was wearing a bulletproof vest, while in Mundo, the defendant not only disobeyed lawful commands, but also engaged in reckless driving that nearly struck a pedestrian. These facts justified the officers’ belief, based on the defendants’ behavior, that any weapons actually present would pose an actual and specific danger to the officers. -25- Similarly, here, defendant’s repeated glances at the shopping bag behind the front passenger seat also demonstrated his preoccupation with an item inside the vehicle at the time of the stop. That, combined with the fact that he was repeatedly looking at the officers and his passenger and refusing to get out of the car, indicated that a concealed weapon was likely present. Defendant’s behavior also demonstrated that this likely-present weapon posed an actual and specific danger to the officers. First, the fact that defendant was pulled over for driving dangerously and was “hyper” and potentially high showed that he already had little regard for the lives of other motorists and pedestrians. It was also clear that defendant had little respect for the officers’ efforts to reduce any potential danger inherent in a traffic stop, considering the fact that he refused to follow Officer Kailer’s instructions to stop moving and get out of the car. This dangerous conduct was only compounded by the fact that he continued “moving around” once he was unsecured and three feet away from the back seat. In light of defendant’s behavior, Officer Loud was justified in fearing that defendant might grab the gun from the backseat and use it to hurt the officers. Defendant claims that upholding the limited protective search in this case would “reinstate” the “theoretical possibility” test that this Court rejected in Torres (Defense Brief: 17-18). That is simply incorrect. Of course, in Torres, this Court rejected the concept that a limited protective search of a vehicle could be justified even when a defendant has not engaged in any suspicious or dangerous behavior merely because of the “theoretical possibility” that the defendant could, “upon reentry -26- into his vehicle, reach for a concealed weapon and threaten the departing police officer’s safety.” 74 N.Y.2d at 230. Here, however, the lower courts did not justify Officer Loud’s search of the bag behind the front passenger seat based on any “theoretical possibility” that he could have used a weapon upon reentry into his vehicle. Instead, the lower courts found that the search was warranted based on facts demonstrating the substantial likelihood of a weapon that presented a threat to the officers’ safety. Thus, the Appellate Division correctly applied the applicable legal standard, and defendant’s attempts to deviate from it should not be countenanced by this Court. Next, defendant insists that this Court in Torres required police to have “[ ]reasonable suspicion of criminal activity” before conducting a protective search for a weapon in a vehicle (Defense Brief: 26 [emphasis in original]). In other words, according to defendant, the police may not search a car for their own protection if the driver “merely committed a traffic infraction,” unless subsequent events unfolding during the stop provide reasonable suspicion of a crime (Defense Brief: 25-31). Despite faulting the lower courts for failing to make an explicit ruling finding “reasonable suspicion” (Defense Brief: 26), defendant himself recognizes that in neither Mundo nor Carvey did this Court discuss any reasonable suspicion requirement separate from whether there was a “substantial likelihood” that a weapon was present (Defense Brief: 27-28). Nor have any of the Departments read the Carvey/Mundo test as requiring officers to possess reasonable suspicion that a crime -27- was committed before searching a lawfully stopped car. See, e.g., People v. Omowale, 83 A.D.3d 614 (1st Dept. 2011), aff’d, 18 N.Y.3d 825 (2011); People v. Hawkins, 45 A.D.3d 989 (3d Dept. 2007), lv. denied, 9 N.Y.3d 1034 (2008); People v. Fludd, 20 A.D.3d 351, 353 (1st Dept. 2005), lv. denied, 5 N.Y.3d 852 (2005); People v. Cheek, 18 A.D.3d 475 (2d Dept. 2005), lv. denied, 5 N.Y.3d 786 (2005); People v. Ponce, 182 A.D.2d 1103 (4th Dept. 1992), lv. denied, 80 N.Y.2d 836 (1992). Defendant is thus proposing an entirely new legal standard never before required by this or any other appellate court. Defendant’s novel interpretation of this Court’s jurisprudence regarding protective vehicle searches was never argued before the hearing court below—or, for that matter, the Appellate Division—and is entirely unpreserved for this Court’s review. CPL § 470.05; People v. Gray, 86 N.Y.2d 10, 19-22 (1995). In arguing to the contrary, defendant cites to People v. Garrett, 23 N.Y.3d 878 (2014), which is entirely inapplicable here (see Defense Brief: 32). In Garrett, this Court determined that an appellate court may consider all prongs of a multi-factor test even if “the nisi prius court neglected to mention an element of the multifactor . . . test.” 23 N.Y.3d at 885 n.2 Here, defendant is not relying on a separate prong of the Carvey/Mundo test. He is instead seeking to have this Court add an additional factor to the Carvey/Mundo test based on language found in Torres. Thus, the classic rules of preservation apply: defendant was required to raise this argument in the lower courts so that they could -28- fully consider it before it reached this Court. In any event, defendant’s contentions are completely meritless. As defendant now posits, courts are required by Torres to definitively determine that a police officer had (1) a “reasonable suspicion of criminal activity” as well as (2) “an articulable basis to fear for his own safety” before condoning a protective search of a defendant’s vehicle (Defense Brief: 25-27). According to defendant, Torres’ second prong of an officer’s “articulable basis to fear for his own safety” encompasses the two-part Carvey/Mundo test of a “substantial likelihood” that a weapon is present that poses an “actual and specific” danger to the officer’s safety (Defense Brief: 28-29). Thus, stated as simply as possible, defendant insists that courts reviewing a protective stop must determine that the police officer (1) had a reasonable suspicion of criminal activity, (2) reasonably concluded that there was a substantial likelihood of a weapon present, and (3) reasonably believed that the weapon posed an actual and specific danger to the officers’ safety. Significantly, however, defendant also acknowledges that his new-found Torres prong of “reasonable suspicion” may be met when the police determine that the defendant might be unlawfully possessing a weapon inside a car (Defense Brief: 27- 28). Thus, according to defendant, in Carvey, “the same behavior that gave rise to the reasonable belief that the defendant had a gun and that he would use it also supplied reasonable suspicion to believe the defendant had committed a crime,” specifically, possession of a loaded firearm outside his home or place of business (Defense Brief: -29- 27-28 [citing Penal Law § 265.03; Carvey, 89 N.Y.2d at 712]). Notably, too, in Carvey, this Court made clear that the Carvey/Mundo test requiring “substantial likelihood” of a weapon and an “actual and specific” danger from it was more strenuous than the test for “reasonable suspicion.” Carvey, 89 N.Y.2d at 711 (stating that in Torres, the Court emphasized that “reasonable suspicion alone will not suffice” to authorize a protective search). Therefore, in most instances, including here, defendant’s proposed “reasonable suspicion” requirement would be largely redundant: in most cases, an officer’s belief that there was a “substantial likelihood” that a weapon was present in the vehicle that posed an actual and specific danger would, by its very nature, subsume any requirement that he possess reasonable suspicion of a crime. Certainly, here, the facts evaluated by the courts in determining that there was likely a weapon that posed a danger to the officers would be the very same facts used to determine whether the police had reasonable suspicion of an illegally possessed weapon. Indeed, in proposing a “reasonable suspicion” prong and arguing that it was lacking in this case, defendant simply reiterates the very same arguments he made against finding the protective search proper under the Carvey/Mundo test (compare Defense Brief: 17-22 with Defense Brief: 29-30). Here, as discussed above, there was clearly a “substantial likelihood” that a weapon was present in the vehicle and an actual and specific danger that it would be used against the police; thus, the officers also possessed reasonable suspicion of a crime. See, e.g., Penal Law §§ 265.01-265.06 (criminalizing the unlawful possession of a weapon). Therefore, even if this Court -30- saw fit to impose such a requirement, it would not affect the outcome of this case or any others like it.7 Notably, of course, this Court has never required such a redundant determination. Certainly, if this Court intended to require officers to possess reasonable suspicion of a crime before allowing a protective vehicle search, it would have said so explicitly. Instead, the Torres Court delineated a separate and distinct test for protective searches of vehicles compared to people or their personal effects. 74 N.Y.2d at 231 n.4; Carvey, 89 N.Y.2d at 711. To be sure, the Torres Court began its opinion by restating the long-standing principle that an officer must possess “reasonable suspicion” and an “articulable basis to fear for his own safety” before conducting a protective search of a person or his personal effects. 74 N.Y.2d at 226. But then, this Court explained that in the absence of probable cause, searches of vehicles are unlawful unless “facts revealed during…the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and 7 To the extent that a scenario might exist in which a “reasonable suspicion” test was not met by the Carvey/Mundo test, it bears noting that officers are entitled to stop a car and order its occupants out due to a mere traffic violation, and in the absence of reasonable suspicion of a crime. See, e.g., People v. Garcia, 20 N.Y.3d 317, 321 (2012); People v. Robinson, 74 N.Y.2d 773, 774-75 (1989). If officers engaged in such a stop make the determination of a “substantial likelihood” of a weapon that poses an “actual and specific” danger, but are nevertheless restricted from conducting a protective search of the vehicle, it would unduly endanger those officers. Thus, to the extent that defendant suggests that his proposed “reasonable suspicion” requirement would not be subsumed by the Carvey/Mundo test, that requirement would work against the prevailing rationale for allowing such protective searches in the first place: to ensure officer safety while they are performing their lawful duties. -31- specific danger to the officers’ safety.” Torres, 74 N.Y.2d at 226, 231 n.4; Mundo, 99 N.Y.2d at 58; Carvey, 89 N.Y.2d at 710. Thus, the applicable test focuses solely on the concern that officers could be in danger from a weapon concealed in a lawfully stopped car. A reasonable suspicion requirement would pull the focus away from this pressing question, and lower courts could become preoccupied with determining whether officers could articulate a contemporaneous belief that a defendant’s conduct could have amounted to a crime under a specific criminal statute. Indeed, defendant spends a portion of his brief specifically detailing how, in Carvey, the police could have had reasonable suspicion that defendant had a loaded gun in the car, in violation of Penal Law § 265.03, and how, in Mundo, the defendant violated Penal Law § 270.25 when he fled from police and almost hit a pedestrian (Defense Brief: 27-29). In contrast, defendant claims that, here, the officers at most had reasonable suspicion that defendant committed a traffic infraction—possession of an open container of alcohol in a car—which is not a crime (Defense Brief: 29 [citing VTL § 1227]). However, defendant conveniently ignores the fact that this Court never mentioned the applicability of either penal law statute in Carvey or Mundo, let alone justified its holding on any such analysis, and, understandably, neither did the lower courts in this case. Such digressions from the rationale behind allowing protective vehicle searches are not necessary or productive. In short, the standard outlined by this Court in Torres, Carvey, and Mundo already strikes the appropriate balance between citizens’ privacy in their vehicles and -32- officers’ safety while they go about performing their lawful duties. Defendant’s suggestion of adding a “reasonable suspicion of a crime” requirement actually adds nothing to the Carvey/Mundo test but a redundant layer of examination that would serve only to complicate courts’ evaluations of those protective searches. The only legal standard applicable to the protective search at issue here is whether there was a “substantial likelihood” of a weapon in a lawfully stopped car and an “actual and specific” danger to the officers’ safety. Torres, 74 N.Y.2d at 234 n.4; see Mundo, 99 N.Y.2d at 58-59; Carvey, 89 N.Y.2d at 710-11. And the addition of a “reasonable suspicion” evaluation would not have affected the ultimate ruling here. This case presents no confusion by either the hearing court or the intermediary appellate court regarding the applicable law, and defendant’s arguments to the contrary are wholly without merit. * * * In sum, the Appellate Division’s decision affirming the suppression court’s denial of defendant’s motion to suppress the firearm is supported by the record, and is thus beyond this Court’s review. In any event, the police lawfully conducted a limited protective search behind the front passenger seat of defendant’s vehicle. The courts below properly determined that the gun found there should not have been suppressed. -33- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov BY: JESSICA OLIVE Assistant District Attorney Of Counsel DANA POOLE JESSICA OLIVE Assistant District Attorneys Of Counsel April 28, 2016 -34- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 8675, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2013. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.