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

660
KA 07-02376
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

QUINCY GOODSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MATTHEW J. CLARK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered September 19, 2007. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a weapon in the
second degree and criminal possession of a weapon in the third 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]) and criminal possession of a weapon in the
third degree (§ 265.02 [1]), defendant contends that County Court
erred in refusing to suppress the handgun found on his person.
Defendant correctly concedes that the police properly stopped the
vehicle in which he was a passenger based on a traffic infraction, but
he contends that the handgun should have been suppressed because the
officers lacked reasonable suspicion to order him to exit the vehicle
or frisk him. We reject that contention.

     It is well settled that, “out of a concern for safety, ‘officers
may . . . exercise their discretion to require a driver who commits a
traffic violation to exit the vehicle even though they lack any
particularized reason for believing [that] the driver possesses a
weapon’ ” (People v Robinson, 74 NY2d 773, 774, cert denied 493 US
966, quoting New York v Class, 475 US 106, 115). “Inasmuch as the
risks in . . . police/civilian vehicle encounters are the same whether
the occupant is a driver or a passenger, ‘[the] police may [also]
order [passengers] out of an automobile during a stop for a traffic
violation’ ” (id. at 775, quoting Michigan v Long, 463 US 1032,
1047-1048). In addition, police officers may frisk passengers in a
lawfully stopped vehicle to the extent necessary to guard their
safety, provided that they act on “ ‘reasonable suspicion that
                                 -2-                           660
                                                         KA 07-02376

criminal activity is afoot and on an articulable basis to fear for
[their] own safety’ ” (People v Jones, 39 AD3d 1169, 1170-1171,
quoting People v Torres, 74 NY2d 224, 226). Here, the officer
observed defendant reach towards his waistband while he was sitting in
the vehicle and then quickly pull his hand away. The officer also had
been informed that another passenger in the vehicle matched the
description of the suspect in a series of recent robberies in the area
where the vehicle was stopped, and the officer observed additional
furtive gestures by that passenger. Thus, “[c]onsidering the totality
of the circumstances . . ., [we conclude that] there was an ample
measure of reasonable suspicion necessary to justify” the officer’s
limited frisk for weapons (People v Benjamin, 51 NY2d 267, 271; see
People v Flemming, 59 AD3d 1004, lv denied 12 NY3d 816; People v
Crespo, 292 AD2d 177, lv denied 98 NY2d 709).




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
