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

787
KA 13-01844
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

RONALD EAST, JR., DEFENDANT-APPELLANT.


LOTEMPIO & BROWN, P.C., BUFFALO (MICHAEL H. KOOSHOIAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered June 28, 2013. 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 and the matter is remitted to Supreme Court, Erie
County, 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]). We reject defendant’s
contention that the police lacked probable cause to stop his vehicle.
It is well settled that a traffic stop is lawful where “a police
officer has probable cause to believe that the driver of an automobile
has committed a traffic violation” (People v Robinson, 97 NY2d 341,
349; see People v Binion, 100 AD3d 1514, 1515, lv denied 21 NY3d 911).
Here, the police had probable cause to stop defendant’s vehicle
because one of the officers observed him driving a motor vehicle and
holding a cell phone to his ear while the vehicle was in motion (see
Vehicle and Traffic Law § 1225-c [2] [a], [b]; People v Nunez, 82 AD3d
1128, 1129, lv denied 16 NY3d 898). Shortly after defendant exited
the vehicle, one of the officers observed a handgun in plain view by
the driver’s seat of the vehicle, providing probable cause to arrest
defendant (see People v Johnson, 114 AD3d 1132, 1132).




Entered:    July 3, 2014                           Frances E. Cafarell
                                                   Clerk of the Court
