Summary
In People v Adams, 123 AD2d 769 (2d Dept 1986), a stop' was upheld because of a description of the vehicle of similar make and color which had been observed minutes before near the scene of an armed robbery.
Summary of this case from People v. AnanabaOpinion
October 20, 1986
Appeal from the Supreme Court, Queens County (Agresta, J.).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed on the charge of criminal possession of a weapon in the third degree, that charge is dismissed, and as so modified, the judgment is affirmed.
We find, upon review of the record, that the police had reasonable suspicion to stop the car in which the defendant was apprehended on the basis of a radio bulletin describing a vehicle of similar make and color which had been observed minutes before near the scene of an armed robbery (see, People v Rosario, 94 A.D.2d 329, 332; People v Cook, 85 A.D.2d 672). The subsequent actions of the police in approaching the car with guns drawn (see, People v Brnja, 50 N.Y.2d 366, 372) and ordering the driver out of the vehicle (see, People v Livigni, 88 A.D.2d 386, affd 58 N.Y.2d 894) were likewise justified as appropriate measures to insure their safety (see, People v Finlayson, 76 A.D.2d 670, 678-679, lv denied 51 N.Y.2d 1011, cert denied 450 U.S. 931). We further find that the police had probable cause to arrest the defendant and his codefendants following the discovery of a gun in plain view on the front seat of the car (see, People v David L., 56 N.Y.2d 698, cert denied 459 U.S. 866). The police were therefore entitled to search not only the defendant, as incidental to his lawful arrest (see, People v Perel, 34 N.Y.2d 462), but also the vehicle since it was observed at the scene of the earlier robbery and was hence likely to contain evidence related to the crime (see, People v Belton, 55 N.Y.2d 49, 54-55), Thus, the hearing court properly denied those branches of the defendant's omnibus motion which were to suppress both the physical evidence recovered as a result of the search and the subsequent showup identification by the witness Loftman as fruits of an illegal arrest.
We also find, with respect to that branch of the motion which was to suppress the identification testimony, that the witness Loftman viewed the perpetrator of the robbery for two or three minutes during the commission of the crime in a well-lighted store, from a distance of approximately three feet. The hearing court therefore properly declined to suppress her identification testimony (see, People v Adams, 53 N.Y.2d 241).
The sentence imposed on the purported conviction of criminal possession of a weapon in the third degree is vacated, inasmuch as the jury, pursuant to the court's instructions, did not return a verdict on this count (see, People v Richards, 121 A.D.2d 660; People v Grier, 118 A.D.2d 727; People v Palmer, 104 A.D.2d 912).
We have examined the remainder of the defendant's contentions and have found them to be without merit. Brown, J.P., Weinstein, Lawrence and Kooper, JJ., concur.