         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
349
KA 07-02580
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

DAVID EVERETT, DEFENDANT-APPELLANT.


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

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered October 16, 2007 and October 29, 2007. The
judgment convicted defendant, upon a jury verdict, of assault in the
second degree, operating a motor vehicle without a certificate of
inspection, license plate display violation and operating a motor
vehicle without a license.

     It is hereby ORDERED that the   judgment so appealed from is
unanimously modified on the law by   reversing that part convicting
defendant of assault in the second   degree and dismissing count one of
the indictment and as modified the   judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, assault in the second degree (Penal Law §
120.05 [3]), defendant contends that the evidence is legally
insufficient to support the assault conviction. We agree. Pursuant
to Penal Law § 120.05 (3), “[a] person is guilty of assault in the
second degree when . . ., [w]ith intent to prevent . . . a police
officer . . . from performing a lawful duty . . ., he or she causes
physical injury to such . . . police officer . . . .” Here, an
officer was injured while he was attempting to pat down defendant
after he and another officer pulled over defendant’s vehicle.
Although the People established that the police properly stopped
defendant’s vehicle for violations of the Vehicle and Traffic Law and
asked defendant to exit the vehicle because he had no identification,
we conclude that the pat-down search of defendant for “officer safety”
was illegal. A pat-down search of a traffic offender is not
authorized “unless, when the vehicle is stopped, there are reasonable
grounds for suspecting that the officer is in danger or there is
probable cause for believing that the offender is guilty of a crime
rather than merely a simple traffic infraction” (People v Marsh, 20
NY2d 98, 101). Here, the officers did not have any “knowledge of some
                                 -2-                           349
                                                         KA 07-02580

fact or circumstance that support[ed] a reasonable suspicion that the
[defendant was] armed or pose[d] a threat to [their] safety” (People v
Batista, 88 NY2d 650, 654). The Court of Appeals has expressly
declined to adopt the decision of the United States Supreme Court in
Michigan v Long (463 US 1032), “which found that an intrusion by the
police ‘could be justified purely on the theoretical basis . . . that
harm could occur after the investigation is terminated and the suspect
is permitted to reenter his [or her] vehicle’ ” (People v Mundo, 99
NY2d 55, 58, quoting People v Torres, 74 NY2d 224, 232 n 4). Thus,
viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that the evidence was
legally insufficient to establish that the officer was injured while
undertaking a lawful duty (see generally People v Bleakley, 69 NY2d
490, 495). We therefore modify the judgment by reversing that part
convicting defendant of assault in the second degree and dismissing
count one of the indictment. In light of our conclusion, we do not
reach defendant’s remaining contentions.




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
