MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Sullivan County (Frank J. LaBuda, J.), rendered June 11, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
Following a traffic stop, defendant was indicted and charged with criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree (four counts), criminally using drug paraphernalia in the second degree, criminal possession of a weapon in the fourth degree, criminal possession of stolen property in the fourth degree and three traffic violations. After County Court denied defendants motion to suppress certain physical evidence and statements, defendant agreed to plead guilty – in full satisfaction of the indictment – to criminal possession of a weapon in the second degree with the understanding that he would be sentenced to a prison term of eight years followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal, including his right to challenge County Courts suppression ruling. Defendant pleaded guilty in conformity with the plea agreement, and County Court sentenced defendant as a second felony offender to the agreed-upon term of imprisonment. Defendant appeals, solely challenging the denial of his motion to suppress his statements and certain physical evidence.
The People concede – and our review of the record confirms – that defendants waiver of the right to appeal is invalid (see People v. Moore, 203 A.D.3d 1401, 1401, 163 N.Y.S.3d 712 [3d Dept. 2022], lv denied 38 N.Y.3d 1034, 169 N.Y.S.3d 216, 189 N.E.3d 323 [2022]; People v. Beach, 197 A.D.3d 1440, 1440–1441, 151 N.Y.S.3d 652 [3d Dept. 2021]). Thus, in the absence of a valid appeal waiver, defendants challenge to County Courts suppression ruling survives his guilty plea and is properly before us (see People v. Butler, 196 A.D.3d 28, 30, 148 N.Y.S.3d 286 [3d Dept. 2021]; People v. Henry, 133 A.D.3d 1085, 1086, 20 N.Y.S.3d 682 [3d Dept. 2015]).
Turning to the merits, “a stop of a motor vehicle is justified when an officer observes or reasonably suspects that a violation of the Vehicle and Traffic Law has occurred” (People v. Green, 80 A.D.3d 1004, 1004–1005, 915 N.Y.S.2d 371 [3d Dept. 2011]; see People v. Martin, 156 A.D.3d 956, 957, 66 N.Y.S.3d 572 [3d Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018]; People v. James, 155 A.D.3d 1094, 1095, 64 N.Y.S.3d 350 [3d Dept. 2017], lv denied 30 N.Y.3d 1116, 77 N.Y.S.3d 341, 101 N.E.3d 982 [2018]). In conjunction therewith, “a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” (People v. Martin, 156 A.D.3d at 957, 66 N.Y.S.3d 572 [internal quotation marks and citation omitted]; see People v. Wideman, 192 A.D.3d 1384, 1385, 145 N.Y.S.3d 194 [3d Dept. 2021], affd 38 N.Y.3d 1067, 171 N.Y.S.3d 28, 190 N.E.3d 1160 [2022]; see also People v. Cooper, 199 A.D.3d 1061, 1062, 157 N.Y.S.3d 185 [3d Dept. 2021], lv denied 38 N.Y.3d 926, 164 N.Y.S.3d 10, 184 N.E.3d 831 [2022]). Additionally, “[a] police officer may request consent to search a vehicle if, during a traffic stop, the officer develops a founded suspicion that criminality is afoot” (People v. Hayden, 155 A.D.3d 1309, 1310, 65 N.Y.S.3d 320 [3d Dept. 2017]; see People v. Cooper, 199 A.D.3d at 1062, 157 N.Y.S.3d 185; People v. Whalen, 101 A.D.3d 1167, 1168, 956 N.Y.S.2d 598 [3d Dept. 2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013]). Such founded suspicion, in turn, may stem from a defendants demeanor, as well as any inconsistencies or inaccuracies in the information that the defendant has provided (see People v. Cooper, 199 A.D.3d at 1062, 157 N.Y.S.3d 185; People v. Whalen, 101 A.D.3d at 1168, 956 N.Y.S.2d 598). In this regard, although a defendants status as a parolee does not constitute a wholesale surrender of the constitutional right against unreasonable searches and seizures, “such status may be appropriately considered in assessing the reasonableness of the [police] conduct following the initial traffic stop” (People v. Blanche, 183 A.D.3d 1196, 1198, 124 N.Y.S.3d 738 [3d Dept. 2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 384, 152 N.E.3d 1185 [2020]; see People v. Carey, 163 A.D.3d 1289, 1291, 82 N.Y.S.3d 642 [3d Dept. 2018], lv denied 32 N.Y.3d 1124, 93 N.Y.S.3d 262, 117 N.E.3d 821 [2018]; People v. Banks, 148 A.D.3d 1359, 1361, 50 N.Y.S.3d 583 [3d Dept. 2017]).
The state trooper who initiated the traffic stop testified that he observed defendants vehicle change lanes without signaling and cross over the fog line/rumble strip on the highway. Upon approaching the vehicle, the trooper noticed that defendant was sitting in what he described as an “unnatural position” – with his legs squeezed together and angled toward the center console and his upper torso “contorted” toward the driver side door – causing the trooper to believe that defendant was attempting to shield the right side of his body from view. In response to the troopers inquiry, defendant indicated that he was returning from work. The trooper then asked defendant to exit the vehicle, and defendant complied. When the trooper again asked defendant where he was coming from, defendant said that he was coming from a friends house. Defendants inconsistent responses, coupled with the manner in which he had been sitting in the vehicle, aroused the troopers suspicions, prompting him to run a “file check” on defendant, which revealed that he was on parole. At this point, the trooper asked if he and his partner, who had been stationed at the passenger side of defendants vehicle, could search the car. According to the trooper, defendant answered in the affirmative.
After the trooper discovered a small bag of jewelry “tucked under the plastic paneling by the center console” of the vehicle, he and his partner again approached defendant, who was being watched over by a third state trooper who had arrived at the scene. According to the trooper, defendant was “blading himself away from [the trooper]” – defined as standing in an “aggressive” or “fighting” stance with one foot in front of the other. At this point, the trooper, who could no longer see defendants right hand, also observed a bulge in defendants waistband, prompting the trooper to ask defendant if he would consent to a search of his person. Defendant gave his consent and – without prompting – turned and placed his hands on the hood of the vehicle. As the trooper was patting down defendant, he “felt a hard unknown object” in the area of defendants groin – consistent with where the trooper had observed the bulge in defendants pants. The trooper made three attempts to retrieve the object, which was located underneath multiple layers of clothing, and each time defendant reached around and grabbed the troopers hand. After defendant grabbed the troopers hand for the third time, defendant was placed in handcuffs, and the trooper retrieved a folded plastic bag containing substances that field tested positive for crack cocaine and heroin, as well as certain pharmaceutical pills. Defendant then was transported to the barracks where – a State Police investigator testified – he was read his Miranda warnings, made incriminating statements and gave his consent to retrieve certain items from his residence, including a rifle. Consistent with the statements made by defendant, a subsequent search of defendants vehicle uncovered a handgun secreted inside the armrest of the rear passenger side door.
Contrary to defendants assertion, County Court properly denied his motion to suppress the physical evidence and incriminating statements at issue. The trooper who initiated the traffic stop observed defendant engage in various traffic infractions, thereby justifying the initial stop of defendants vehicle (see People v. Martin, 156 A.D.3d at 957, 66 N.Y.S.3d 572; People v. Green, 80 A.D.3d at 1004–1005, 915 N.Y.S.2d 371). Additionally, and as noted previously, the trooper was entitled, “without particularized suspicion” (People v. Martin, 156 A.D.3d at 957, 66 N.Y.S.3d 572 [internal quotation marks and citation omitted]), to ask defendant to exit the vehicle. Defendants inconsistent responses to the troopers inquiries and the unusual manner in which he was sitting in the vehicle provided the founded suspicion necessary to support the troopers request to search the vehicle (see People v. Cooper, 199 A.D.3d at 1062, 157 N.Y.S.3d 185; People v. Whalen, 101 A.D.3d at 1168, 956 N.Y.S.2d 598). In this regard, the trooper also properly took into consideration defendants status as a parolee (see People v. Carey, 163 A.D.3d at 1290, 82 N.Y.S.3d 642; People v. Banks, 148 A.D.3d at 1361, 50 N.Y.S.3d 583). Accordingly, we have no quarrel with either the initial stop and detention of defendant or the request to search his vehicle.
With respect to the troopers request to search defendants person, “in order to justify a frisk of a suspects outer clothing, a police officer must have knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety” (People v. Davenport, 92 A.D.3d 689, 690, 939 N.Y.S.2d 473 [2d Dept. 2012] [internal quotation marks and citations omitted], lv dismissed 19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209 [2012]; see People v. Wideman, 192 A.D.3d at 1385, 145 N.Y.S.3d 194). Inasmuch as a bulge in a defendants waistband “is a familiar telltale sign of a weapon” (People v. Delgado, 70 A.D.3d 442, 443, 895 N.Y.S.2d 360 [1st Dept. 2010], lv denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567 [2010]; see People v. De Bour, 40 N.Y.2d 210, 221, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976]; People v. Davenport, 92 A.D.3d at 691, 939 N.Y.S.2d 473), the troopers observation of the bulge in defendants waistband – as well as defendants apparent attempts to shield a portion of his body from the troopers view – provided the trooper with a reasonable suspicion that defendant was armed or otherwise posed a threat to safety, thereby justifying the request to search his person. Finally, the investigator testified – without contradiction – that defendant waived his Miranda rights, gave various incriminating statements and consented to a search of his residence. Granting due deference to County Courts credibility determinations (see People v. Wideman, 192 A.D.3d at 1385, 145 N.Y.S.3d 194; People v. Morris, 105 A.D.3d 1075, 1077, 962 N.Y.S.2d 760 [3d Dept. 2013], lv denied 22 N.Y.3d 1042, 981 N.Y.S.2d 376, 4 N.E.3d 388 [2013]), and upon reviewing the record as a whole, we are persuaded that County Court properly denied defendants motion to suppress. Defendants remaining arguments on this point, including his assertion that his consent and/or statements were coerced, have been examined and found to be lacking in merit.
ORDERED that the judgment is affirmed.
Clark, J.
Garry, P.J., Egan Jr., Fisher and McShan, JJ., concur.