Opinion
306 KA 15-01683
03-26-2021
The PEOPLE of the State of New York, Respondent, v. Zondre HOLT, Also Known as Zandrea K. Holt, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). The conviction arose from an incident in which defendant was found in possession of a firearm following the stop by police officers of a vehicle that he was driving.
Defendant contends that his waiver of the right to appeal is invalid and that County Court erred in denying that part of his omnibus motion seeking to suppress physical evidence and statements obtained as a result of the traffic stop. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our consideration of his suppression contention (see People v. Johnson , 189 A.D.3d 2145, 2146, 134 N.Y.S.3d 877 [4th Dept. 2020] ), we conclude that the contention lacks merit. Defendant does not dispute that the officers who performed the stop did so after observing defendant commit a traffic violation. Contrary to defendant's contention, "regardless of whether the stop was pretextual, it was lawful inasmuch as the police had probable cause to believe that the driver of the vehicle had committed a traffic violation" ( People v. Huddleston , 160 A.D.3d 1359, 1360, 76 N.Y.S.3d 294 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ; see People v. Brunson , 145 A.D.3d 1476, 1477, 44 N.Y.S.3d 643 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017] ; People v. Donaldson , 35 A.D.3d 1242, 1243, 826 N.Y.S.2d 540 [4th Dept. 2006], lv denied 8 N.Y.3d 984, 838 N.Y.S.2d 487, 869 N.E.2d 663 [2007] ). Contrary to defendant's further contention, the officers did not improperly escalate the encounter by opening the car door while ordering defendant to exit the vehicle after he had refused. At that point in the encounter, the officers possessed probable cause to arrest defendant based upon his failure to produce a valid driver's license (see People v. Clark , 227 A.D.2d 983, 984, 643 N.Y.S.2d 836 [4th Dept. 1996] ).
Defendant failed to preserve his remaining contention that his guilty plea was not knowing, intelligent, and voluntary (see People v. Hill , 128 A.D.3d 1479, 1480, 8 N.Y.S.3d 805 [4th Dept. 2015], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ; People v. Davis , 37 A.D.3d 1179, 1179, 829 N.Y.S.2d 791 [4th Dept. 2007], lv denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663 [2007] ), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).