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

1130
KA 07-01554
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID BINION, DEFENDANT-APPELLANT.


KIMBERLY J. CZAPRANSKI, INTERIM CONFLICT DEFENDER, ROCHESTER (JOSEPH
D. WALDORF OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered November 29, 2006. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the third degree (four counts), attempted criminal possession of a
weapon in the third degree and criminal possession of a weapon in the
fourth degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of four counts of criminal possession of a weapon
in the third degree (Penal Law § 265.02 [1], [former (4)]), one count
of attempted criminal possession of a weapon in the third degree (§§
110.00, 265.02 [1]) and two counts of criminal possession of a weapon
in the fourth degree (§ 265.01 [former (4)]). The conviction arose
from defendant’s possession of guns in his residence and a vehicle in
which he was a passenger. During the initial police investigation of
a report of shots fired in the vicinity of defendant’s residence, a
police sergeant and a police officer each had a face-to-face
conversation with a different unidentified citizen informant. Facts
developed in the investigation and the information provided by the two
unidentified citizen informants provided the basis for the issuance of
a search warrant for defendant’s residence.

     Defendant contends the search warrant was not issued upon
probable cause and thus that County Court erred in refusing to
suppress the guns recovered from his residence by the police.
Contrary to defendant’s contention concerning the warrant application,
the court properly denied his motion for a Franks/Alfinito hearing
(see Franks v Delaware, 438 US 154; People v Alfinito, 16 NY2d 181)
because he failed to make “a substantial preliminary showing that a
                                 -2-                          1130
                                                         KA 07-01554

false statement knowingly and intentionally, or with reckless
disregard of the truth, was included by the affiant in the warrant
affidavit, and . . . [that such] statement [was] necessary to the
finding of probable cause” (Franks, 438 US at 155; see People v Tambe,
71 NY2d 492, 504-505). Additionally, at the Darden hearing, the
People established the unavailability of the informants despite
diligent efforts to locate them (see People v Carpenito, 80 NY2d 65,
68). Thereafter, the court properly considered extrinsic evidence of
the informants’ existence in reaching its determination that the two
informants existed (see People v Fulton, 58 NY2d 914, 916; cf. People
v Phillips, 242 AD2d 856, 856). We note that the court’s assessment
of the witnesses’ credibility at the Darden hearing is entitled to
great deference (see generally People v Prochilo, 41 NY2d 759, 761).

     Contrary to defendant’s further contention, we conclude that the
hearsay information supplied in the search warrant affidavit satisfied
the two prongs of the Aguilar-Spinelli test and that the search
warrant was issued upon probable cause (see generally People v
DiFalco, 80 NY2d 693, 696-699). Consequently, we reject defendant’s
contention that the guns recovered from his residence should have been
suppressed.

     In contending that the court erred in refusing to suppress the
guns found in the vehicle in which he was a passenger, defendant
asserts that the stop of the vehicle, the pat frisk of his person, his
detention at the scene, the search of the vehicle and his arrest were
improper. Contrary to defendant’s contention, a traffic stop is
lawful where, as here, “a police officer has probable cause to believe
that the driver of an automobile has committed a traffic violation, .
. . [regardless of] the primary motivation of the officer” (People v
Robinson, 97 NY2d 341, 349). We further conclude that defendant’s
removal from the vehicle and the pat frisk of his person were
justified. Based on concern for officer safety, the police may
properly “ ‘require a driver who commits a traffic violation and any
passenger to exit the vehicle even though they lack any particularized
reason for believing the driver possesses a weapon’ ” (People v
Robinson, 74 NY2d 773, 774, cert denied 493 US 966). Here, at the
time of the traffic stop, the police observed the furtive movements of
the driver and defendant in the vehicle and, upon identifying
defendant, they were aware that other police officers were
simultaneously executing a search warrant for guns at his residence.
“Thus, ‘[c]onsidering the totality of the circumstances . . . , [we
conclude that] there was an ample measure of reasonable suspicion
necessary to justify’ ” the removal of defendant from the vehicle and
the limited frisk for weapons (People v Goodson, 85 AD3d 1569, 1570,
lv denied 17 NY3d 953; see Robinson, 74 NY2d at 774-775).

     We conclude that defendant’s detention at the scene of the
traffic stop was lawful and did not constitute a de facto arrest.
Defendant was placed in the back seat of a patrol vehicle without
handcuffs after the police observed him leaving a residence subject to
a search warrant, and they observed his furtive movements and those of
the driver. The nonarrest detention was necessary due to the
                                 -3-                          1130
                                                         KA 07-01554

suspicion of criminal activity, pursuant to which the police sought
the consent of the vehicle’s owner to search the vehicle (see
generally People v Abdur-Rahman, 278 AD2d 884, 885, lv denied 96 NY2d
825). Furthermore, the police action in detaining defendant was
reasonable based on the need for officer safety (see People v Drake,
93 AD3d 1158, 1160) and the needs of law enforcement to ensure that
defendant did not interfere with execution of the search warrant (see
generally People v Jackson, 88 AD3d 451, 451-452, lv denied 18 NY3d
884). Upon obtaining the consent of the vehicle owner to search the
vehicle (see People v Quagliata, 53 AD3d 670, 671, lv denied 11 NY3d
834; see also People v Calloway, 71 AD3d 1493, 1493, lv denied 15 NY3d
748), the police recovered two handguns from the interior of the
vehicle, whereupon “reasonable suspicion ripened into probable cause
to arrest defendant” (People v Coon, 212 AD2d 1009, 1010, lv denied 85
NY2d 937; see People v Williams, 17 AD3d 1043, 1044, lv denied 5 NY3d
811).

     Also contrary to defendant’s contention, the court did not err in
reopening the suppression hearing to clarify the timing of the vehicle
owner’s consent to search the vehicle before rendering a decision on
defendant’s suppression motion (see People v Ramirez, 44 AD3d 442,
443, lv denied 9 NY3d 1008; People v Cestalano, 40 AD3d 238, 238-239,
lv denied 9 NY3d 921).

     We further conclude that the court properly admitted in evidence
the guns recovered from the vehicle. “Mere identification by one
familiar with the object[s] . . . will be sufficient [to authenticate
evidence] ‘when the object[s] possess[ ] unique characteristics or
markings’ and any material alteration would be readily apparent”
(People v McGee, 49 NY2d 48, 60), and there were no testimonial, out-
of-court statements that would implicate defendant’s right of
confrontation (cf. Bullcoming v New Mexico, ___ US ___, ___, 131 S Ct
2705, 2710).

     Finally, the imposition of consecutive sentences was not illegal
given that two distinct acts were involved (see People v Laureano, 87
NY2d 640, 643; People v Brown, 80 NY2d 361, 363-364).




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
