Lotempio & Brown, P.C., Buffalo (Michael H. Kooshoian of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, and SCONIERS, JJ.
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] ). We reject defendant's contention that the police lacked probable cause to stop his vehicle. It is well settled that a traffic stop is lawful where “a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation” ( People v. Robinson, 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638;see People v. Binion, 100 A.D.3d 1514, 1515, 954 N.Y.S.2d 369,lv. denied21 N.Y.3d 911, 966 N.Y.S.2d 362, 988 N.E.2d 891). Here, the police had probable cause to stop defendant's vehicle because one of the officers observed him driving a motor vehicle and holding a cell phone to his ear while the vehicle was in motion ( seeVehicle and Traffic Law § 1225–c [2][a], [b]; People v. Nunez, 82 A.D.3d 1128, 1129, 920 N.Y.S.2d 146,lv. denied16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981). Shortly after defendant exited the vehicle, one of the officers observed a handgun in plain view by the driver's seat of the vehicle, providing probable cause to arrest defendant ( see People v. Johnson, 114 A.D.3d 1132, 1132, 979 N.Y.S.2d 735).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50(5).