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

938
KA 16-00161
PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY WILLIAMS, III, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (HERBERT L. GREENMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J.
PUNCH OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered September 29, 2015. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and unlawful possession of marihuana.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Erie County Court
for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals 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]) and unlawful possession of
marihuana (§ 221.05). Defendant contends that County Court erred in
refusing to suppress the physical evidence obtained from him as well
as the statements he made both before and after his arrest inasmuch as
the police did not have reasonable suspicion or probable cause to ask
defendant a question that was intended to evoke an inculpatory
response. We reject that contention.

     At the suppression hearing, the arresting police officer
testified that defendant was a passenger in a vehicle that had been
pulled over for failing to signal before a turn. Upon approaching the
vehicle, the officer asked for defendant’s name and identification,
and observed that defendant was patting his pocket and was shaking and
visibly nervous. After the officer inquired why defendant was shaking
and was so nervous, defendant replied, “I’m not going to lie. I got a
little bit of weed on me.” In response to the officer’s further
questions, defendant admitted that he possessed five bags of marihuana
and, after defendant was taken out of the vehicle, the police found a
small handgun and five or six bags of marihuana on defendant’s person.

     We conclude that, after the stop, the officer was permitted to
                                 -2-                           938
                                                         KA 16-00161

approach defendant as a passenger in the vehicle and ask
nonincriminating questions (see generally People v Hollman, 79 NY2d
181, 190-191; People v Rodriguez, 82 AD3d 1614, 1615, lv denied 17
NY3d 800; People v Faines, 297 AD2d 590, 593, lv denied 99 NY2d 558).
Contrary to defendant’s contention, the officer’s question in response
to defendant’s manifest nervousness did not “exceed[ ] a request for
information and the question[ ] was neither invasive nor focused on
possible criminality” (Faines, 297 AD2d at 593 [internal quotation
marks omitted]; see People v Tejada, 270 AD2d 655, 656, lv denied 95
NY2d 805). Indeed, defendant’s admission that he possessed marihuana
in response to the officer’s inquiry “went far beyond what the
officer’s words could reasonably expect to evoke” (Faines, 297 AD2d at
594).




Entered:   November 18, 2016                   Frances E. Cafarell
                                               Clerk of the Court
