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

965
KA 09-00854
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

TARRELL J. CARTER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMANDA DREHER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered April 15, 2009. 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: 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]). Contrary to defendant’s
contention, County Court properly refused to suppress the gun seized
by the police from defendant’s person during a pat frisk conducted
during a traffic stop. As defendant correctly concedes, the police
officer lawfully stopped defendant’s vehicle because it had a broken
taillight (see generally People v Fagan, 98 AD3d 1270, 1271, lv denied
20 NY3d 1061; People v Dempsey, 79 AD3d 1776, 1777, lv denied 16 NY3d
830), and defendant voluntarily exited the vehicle. Given defendant’s
furtive behavior before and after exiting his vehicle, including being
“fidgety” and “evasive” when answering the police officer’s questions,
turning the right side of his body away from the police officer, and
placing his right hand in his jacket pocket, the police officer
“reasonably suspected that defendant was armed and posed a threat to
[his] safety” (Fagan, 98 AD3d at 1271; see People v Daniels, 103 AD3d
1204, 1205). “Based upon [his] reasonable belief that defendant was
armed, the officer[] lawfully conducted [the] pat frisk” that resulted
in the seizure of the gun (Fagan, 98 AD3d at 1271; see People v
Batista, 88 NY2d 650, 654; People v Grant, 83 AD3d 862, 863-864, lv
denied 17 NY3d 795).

Entered:    September 27, 2013                     Frances E. Cafarell
                                                   Clerk of the Court
