        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

247
KA 14-00853
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DOMINIQUE T. WIGGINS, DEFENDANT-APPELLANT.


ANN M. NICHOLS, BUFFALO, AND E. EARL KEY, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered April 3, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that County Court erred
in refusing to suppress the handgun seized from his person because he
was subject to a de facto arrest for which the police did not have
probable cause. Defendant failed to preserve that contention for our
review (see People v Andrews, 57 AD3d 1428, 1429, lv denied 12 NY3d
850) and, in any event, the contention lacks merit.

     The evidence from the suppression hearing establishes that, after
the officers stopped defendant’s vehicle, defendant was unable to
produce his license and registration when asked for them, and that he
made repeated furtive movements toward one of his jacket pockets while
in his vehicle. After he was directed to exit the vehicle, defendant
refused to obey the officers’ further directives that he keep his
hands up, thereby preventing the officers from frisking him for
weapons. In response, the officers handcuffed defendant and attempted
to place him in a patrol vehicle while they continued their
investigation. Defendant again resisted, however, and continued to
attempt to reach toward his jacket pocket until additional officers
arrived and assisted the initial officers in frisking defendant. The
handgun defendant sought to suppress was found during that frisk.

     “It is well established that not every forcible detention
constitutes an arrest” (People v Drake, 93 AD3d 1158, 1159, lv denied
                                 -2-                           247
                                                         KA 14-00853

19 NY3d 1102; see People v Hicks, 68 NY2d 234, 239), and that officers
may handcuff a detainee out of concern for officer safety (see People
v Allen, 73 NY2d 378, 379-380). Furthermore, a “corollary of the
statutory right to temporarily detain for questioning is the authority
to frisk if the officer reasonably suspects that he [or she] is in
danger of physical injury by virtue of the detainee being armed”
(People v De Bour, 40 NY2d 210, 223; see People v Curry, 81 AD3d 1315,
1315-1316, lv denied 16 NY3d 858). Here, contrary to defendant’s
contention, we conclude that “he was not subjected to a de facto
arrest when he was briefly detained . . . for the officer[s’] safety”
(Drake, 93 AD3d at 1159; see Allen, 73 NY2d at 379-380).
Consequently, we further conclude that the police had probable cause
to arrest him when they discovered a loaded handgun in his pocket (see
People v Madrid, 52 AD3d 530, 531, lv denied 11 NY3d 790; People v
McCoy, 46 AD3d 1348, 1349, lv denied 10 NY3d 813).




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
