BROWN, DIJON, PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
69
KA 16-01106
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DIJON BROWN, DEFENDANT-APPELLANT.
JEREMY D. SCHWARTZ, BUFFALO, FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R.
LOWRY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered July 2, 2014. The judgment convicted defendant, upon
his plea of guilty, of criminal possession of a weapon in the second
degree and unlawful possession of marihuana.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
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]) and unlawful possession of
marihuana (§ 221.05). The charges arose from the seizure of evidence
following the stop of the vehicle in which defendant was a passenger.
At a suppression hearing, police officers testified that they stopped
the vehicle after observing its driver violate Vehicle and Traffic Law
§ 1144-a (a), which requires every operator of a motor vehicle to
“exercise due care to avoid colliding with” a stopped emergency
vehicle that is “displaying” its emergency lights.
We reject defendant’s contention that County Court erred in
reopening the suppression hearing to receive additional testimony to
clarify which lights on the police vehicle were illuminated when it
was passed by the vehicle in which defendant was riding. Where, as
here, the court has not yet rendered its decision on the suppression
motion, it is within the court’s discretion to reopen the hearing to
receive such evidence (see People v Binion, 100 AD3d 1514, 1516, lv
denied 21 NY3d 911; People v Ramirez, 44 AD3d 442, 443, lv denied 9
NY3d 1008). We note in any event that defendant was not prejudiced by
the additional testimony inasmuch as the initial testimony of the
officers was sufficient to establish that the overhead emergency
lights on the police vehicle were activated. We further conclude that
the evidence at the suppression hearing supports the court’s
determination that the officers acquired “probable cause to believe
-2- 69
KA 16-01106
that a traffic violation ha[d] occurred,” thereby justifying the stop
of the vehicle (Whren v United States, 517 US 806, 810; see People v
Robinson, 97 NY2d 341, 349).
Finally, we conclude that defendant’s challenge to the
constitutionality of Vehicle and Traffic Law § 1144-a is not properly
before us because defendant failed to give the requisite notice to the
Attorney General (see Executive Law § 71 [3]; People v Hibbert, 114
AD3d 1134, 1134, lv denied 23 NY3d 963; People v Davis, 68 AD3d 1653,
1654, lv denied 14 NY3d 839).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court