Calendar Date: May 30, 2018Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.__________Andrew Kossover, Public Defender, Kingston (Michael K.Gould of counsel), for appellant.D. Holley Carnright, District Attorney, Kingston (CarlyWolfram of counsel), for respondent.__________Lynch, J.Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered January 10, 2017, convicting defendantupon his plea of guilty of the crime of criminal possession of aweapon in the second degree.On February 23, 2016, patrol officer Michael DeFrancestopped a vehicle after running the vehicle’s license plate andlearning that the vehicle’s registration was suspended. DeFranceapproached the driver’s side of the vehicle, and, upon inquiry,the driver informed DeFrance that he did not have his driver’slicense. DeFrance then asked defendant, who was a passenger, forhis identification. Defendant provided his state identificationcard, and, upon a computer search, DeFrance learned thatdefendant was on parole. From his prior experience, DeFranceunderstood that parolees have curfew limits, and it wasapproximately 3:30 a.m. at the time of the stop.By this point, another officer had joined DeFrance at thescene. When DeFrance returned to the stopped vehicle, he askeddefendant to step out and then inquired why he was on parole, towhich defendant responded, “sales.” While speaking withdefendant, DeFrance detected the odor of alcohol and askeddefendant twice whether he had consumed alcohol that night. Bothtimes defendant replied in the negative. It was then thatDeFrance decided to conduct a protective pat frisk for his ownsafety, believing that defendant was breaching the terms andconditions of his parole by violating curfew and consumingalcohol. Defendant fully complied with DeFrance’s instructionsduring the ensuing frisk. After DeFrance opened the backpackthat defendant was wearing and found a small, zipped-up bagcontaining ammunition, he placed defendant in handcuffs “forsafety.” He then searched defendant’s person and observed thehandle of a handgun in defendant’s front left pocket. DeFrancealerted the other officer of the handgun, retrieved it and handedit to her.Defendant moved to suppress, among other things, theammunition recovered from his backpack and the handgun.Following a hearing, County Court concluded, among other things,that the search of the backpack and seizure of the ammunitionexceeded the permissible scope of a protective frisk, but that itwas reasonable for DeFrance to frisk defendant’s person out ofconcern for his safety. As such, the court denied suppression ofthe gun. Defendant thereafter pleaded guilty to the indictmentand was sentenced to a prison term of 10 years, with five yearsof postrelease supervision. Defendant now appeals, challengingthe partial denial of his suppression motion.On appeal, defendant does not challenge DeFrance’s right tostop and approach the vehicle, nor does he contest the proprietyof DeFrance’s request for identification or direction that heexit the vehicle. Rather, he contends that the pat frisk wasunreasonable because no fact or circumstance supported areasonable suspicion that he was armed or posed any threat to theofficer’s safety. An officer is authorized to conduct aprotective pat frisk when he or she has “knowledge of some factor circumstance that supports a reasonable suspicion that thesuspect is armed or poses a threat to safety” (People v Batista,88 NY2d 650, 654 [1996]; see People v Driscoll, 101 AD3d 1466,1467 [2012]; People v Siler, 288 AD2d 625, 626 [2001], lv denied97 NY2d 709 [2002]). County Court determined that the pat friskwas justified under the circumstances presented, and we agree.A suspect’s status as a parolee is a relevant factor toconsider when evaluating the reasonableness of a particularsearch or seizure (see People v Huntley, 43 NY2d 175, 181 [1977];People v Banks, 148 AD3d 1359, 1361 [2017]), particularly where,as here, the officer had reason to believe that defendant wasthen and there violating both the curfew and alcohol conditionsof his parole. The hour was late and the driver was driving anunregistered vehicle without a license. Defendant’s evasive, ifnot flippant, “sales” response as to why he was on parole,coupled with his repeated denial of alcohol use, heightened thevolatility of the situation. Cumulatively, these factorsvalidate County Court’s conclusion that the officer had areasonable basis to conduct the frisk to assure his own safety(see People v Batista, 88 NY2d at 654-655; compare People vDriscoll, 101 AD3d at 1467-1468).Egan Jr., J.P., Mulvey and Pritzker, JJ., concur.Aarons, J. (dissenting).I respectfully dissent. In my view, the evidence from thesuppression hearing does not support the conclusion thatdefendant was armed or posed a safety concern so as to justify apat frisk. Accordingly, County Court should have granted thatpart of defendant’s motion seeking suppression of the seizedhandgun.“It has been long recognized that permitting police to takereasonable precautions for their safety is an essential corollaryto the exercise of their powers and responsibilities, and thatunder certain circumstances a limited frisk for weapons isreasonable and constitutionally permissible” (People v Crawford,256 AD2d 719, 720 [1998] [citations omitted], lvs denied 92 NY2d1048, 1049, 1055 [1999]; see People v Siler, 288 AD2d 625, 626[2001], lv denied 97 NY2d 709 [2002]). That said, “[a] suspectmay not be frisked by a police officer who has no knowledge offacts that would provide a basis for suspecting that theindividual is armed or dangerous” (People v Carney, 58 NY2d 51,52 [1982]; see People v Sanchez, 38 NY2d 72, 74-75 [1975]; Peoplev Driscoll, 101 AD3d 1466, 1467 [2012]). Determining whether apolice officer had a reasonable belief that his or her safety orthe safety of others was at risk involves the consideration ofthe particular facts and circumstances of each case (see People vBatista, 88 NY2d 650, 653-654 [1996]; People v Crawford, 256 AD2dat 720).Patrol officer Michael DeFrance, the only witness whotestified at the suppression hearing, stated that he pulled overa vehicle in the early morning after discovering that thevehicle’s registration had been suspended. The driver did nothave a license but provided DeFrance with his name and aregistration. DeFrance then obtained the identification ofdefendant, who was sitting in the front passenger seat, and ranhis name through a computer in his vehicle. As DeFrance wasdoing so, another officer arrived on the scene to provideassistance. DeFrance thereafter learned that defendant was onparole. DeFrance stated that he asked defendant to exit thevehicle and defendant complied. When DeFrance inquired ofdefendant as to why he was on parole, defendant responded,“sales, nothing more, nothing less.” Defendant told DeFrancethat he was coming from a friend’s house and going to the diner.DeFrance testified that he detected an odor of alcohol comingfrom defendant and, when he asked defendant whether he hadconsumed any alcohol that night, defendant denied doing so.DeFrance asked defendant the same question again, and defendantresponded in the negative. At that point, DeFrance adviseddefendant that, for his safety, he was going to “pat him down.”DeFrance first searched the backpack that defendant had beenwearing and found a small bag containing ammunition. Whilesearching defendant’s person, DeFrance observed the handle of ahandgun in defendant’s left front pocket. DeFrance removed thehandgun and gave it to the other officer.The foregoing does not evince circumstances indicating thatdefendant presented a safety risk to DeFrance or other members ofthe public. There was no evidence that defendant was combativewith DeFrance or disregarded any of his instructions (see Peoplev St. Clair, 80 AD2d 691, 692 [1981], affd 54 NY2d 900, 901[1981]). Nor was there evidence that, prior to the frisk,DeFrance observed any bulges on defendant suggesting thatdefendant was carrying a weapon (see People v Powell, 246 AD2d366, 369 [1998], appeal dismissed 92 NY2d 886 [1998]; comparePeople v Isaac, 107 AD3d 1055, 1058 [2013]). In addition,defendant did not make any furtive or suspicious movements orengage in any behavior suggesting that he posed a threat toDeFrance or anyone else (see People v Butler, 127 AD3d 623, 623-624 [2015]; compare People v Benjamin, 51 NY2d 267, 271 [1980];People v Robinson, 278 AD2d 808, 808 [2000], lv denied 96 NY2d787 [2001]).Although defendant gave a limited response when DeFranceasked why he was on parole, there is nothing in the recordindicating that DeFrance was unamused or felt threatened by the“sales” remark or that DeFrance was confused by what defendantmeant inasmuch as DeFrance did not ask for further clarification.Furthermore, even accepting that defendant potentially broke hisparole terms by being out late and denied drinking alcohol,notwithstanding the smell of alcohol coming from his person,these facts, whether viewed individually or collectively, did notcreate a volatile situation warranting a pat frisk of defendant.Given that defendant complied with DeFrance’s instructions,another officer was present to assist DeFrance and the absence ofevidence suggesting that defendant was a safety threat, DeFrancehad no basis to conduct a pat frisk of defendant (see People vRuss, 61 NY2d 693, 695 [1984]; People v Driscoll, 101 AD3d at1467; People v Gonzalez, 295 AD2d 183, 184 [2002]; People vPowell, 246 AD2d at 369-370; People v Chinchillo, 120 AD2d 266,269 [1986]; cf. People v Hackett, 47 AD3d 1122, 1124 [2008];compare People v Muniz, 12 AD3d 937, 938-939 [2004]). As such,in my view, County Court should have suppressed the seizedhandgun.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
