People v. Garvey

—Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered November 24, 1993, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a persistent felony offender, to a term of 2 years to life, affirmed. The initial stop of the vehicle in which the defendant was traveling, based upon the absence of a rear license plate, was entirely proper (People v Diaz, 213 AD2d 270, lv denied 85 NY2d 972; see, People v Castro, 129 AD2d 406, affd 70 NY2d 943). The observation, by one of the police officers involved, of the defendant’s bulletproof vest beneath the open collar of his shirt in combination with his furtive motion of bending to place an object beneath the seat, clearly provided the officers with sufficient justification to order the occupants out of the car for a protective frisk (People v Batista, 216 AD2d 174, 175; People v Gil, 211 AD2d 99,102, lv granted 86 NY2d 744). While the wearing of a bulletproof vest is not in and of itself a crime, it is a strong indication that the wearer is armed (cf., People v Heath, 203 AD2d 17, 18, affd 86 NY2d 723). It has been stated that the "whole purpose of the wearing of the vest is to make it more feasible to go armed, to enhance the advantage of doing so, and so to further the commission of the crime of criminal possession of a weapon” (People v Heath, supra, at 19). The Legislature has also recognized that a bulletproof vest is employed by individuals to enhance their ability to commit armed crimes (see, Penal Law § 270.20). The act of bending to place something beneath a car seat is certainly, in and of itself, an innocuous gesture. However, that gesture, in combination with the wearing of a bulletproof vest, under the circumstances herein, cannot reasonably be interpreted as innocent. Discrete analysis of each factor is inappropriate as the officers are confronted with only the complete 194 set of circumstances. Thus, to safeguard his own safety and that of his fellow officers, it was also appropriate for the officer in question to reach to the location in the vehicle toward which defendant had bent, in order to determine if defendant had secreted a weapon there. The Court of Appeals in People v Torres (74 NY2d 224) suppressed the weapon found by officers in a nylon bag taken out of the vehicle from which defendant alighted, but recognized that "there may well be circumstances where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actuaT and specific danger to the officers’ safety sufficient to justify a further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon” (74 NY2d, supra, at 231, n 4). In Torres (supra), the officers were operating pursuant to an anonymous tip and approached the suspect vehicle with guns drawn. The weapon was left in a zippered nylon bag in the vehicle in question after the defendant and the other occupant were removed and frisked. In this case, the circumstances presented an actual and greater threat to the officers’ safety; the officers were outnumbered by the occupants, there was no evidence that the officers approached the vehicle with their guns drawn and the weapon in question was left just under the seat and not in another closed container such as a zippered nylon bag. Concur—Sullivan, Wallach, Kupferman and Ross, JJ.