People v. Everett

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 [1967]). Here, the officers did not have any “knowledge of some fact or circumstance that supported] a reasonable suspicion that the [defendant was] armed or pose[d] a threat to [their] safety” (People v Batista, 88 NY2d 650 , 654 [1996]). The Court of Appeals has expressly declined to adopt the decision of the United States Supreme Court in Michigan v Long ( 463 US 1032 [1983]), “which found that an intrusion by the police ‘could be