BRUNSON, TOMMY, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1045
KA 14-01169
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TOMMY BRUNSON, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered July 2, 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.
Memorandum: On appeal 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]), defendant contends that County Court erred
in denying his motion to suppress a handgun that was discovered
following a traffic stop and inventory search of the vehicle defendant
was operating. We reject that contention.
At the outset, we conclude that the police were justified in
stopping the vehicle based upon defendant’s failure to signal his
intention to turn for the requisite distance before he turned the
vehicle and entered the driveway of a private residence (see Vehicle
and Traffic Law § 1163 [b]). To the extent defendant contends that
the traffic stop was pretextual and thus unlawful, we reject that
contention. It is well settled that a traffic stop is lawful where,
as here, a police officer has probable cause to believe that the
driver of an automobile has committed a traffic violation, regardless
of the primary motivation of the officer (see People v Robinson, 97
NY2d 341, 349; People v Binion, 100 AD3d 1514, 1515, lv denied 21 NY3d
911).
We reject defendant’s further contention that he did not abandon
his expectation of privacy in the vehicle, and thus that the inventory
search of the vehicle was unlawful and the gun should have been
suppressed. After defendant stopped the vehicle in the driveway, he
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KA 14-01169
exited the vehicle and fled the scene, and the police then conducted
an inventory search and found a handgun on the floor of the vehicle.
We conclude that the court properly denied defendant’s suppression
motion inasmuch as defendant’s unprovoked flight from the vehicle
constituted an abandonment of the vehicle and a waiver of any claim to
a reasonable expectation of privacy therein (see People v Gonzalez, 25
AD3d 620, 621, lv denied 6 NY3d 833; People v Hanks, 275 AD2d 1008,
1008, lv denied 95 NY2d 964; see generally People v Ramirez-Portoreal,
88 NY2d 99, 110).
We also reject defendant’s contention that he was deprived of
effective assistance of counsel during the suppression hearing because
his former attorney failed to present testimony from a tenant of the
private residence where defendant stopped the vehicle to the effect
that people unknown to the tenant frequently parked in the driveway.
Such testimony would not have changed the outcome of the suppression
hearing, and there can be no denial of effective assistance of counsel
arising from defense counsel’s failure to make an “argument that has
little or no chance of success” (People v Caban, 5 NY3d 143, 152
[internal quotation marks omitted]). We have considered defendant’s
remaining claims of ineffective assistance of counsel, and we conclude
that they are without merit.
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court