Opinion
February 5, 1993
Appeal from the Supreme Court, Erie County, Glowina, J.
Present — Denman, P.J., Pine, Balio, Fallon and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from his conviction of two counts of criminal possession of a weapon in the third degree (see, Penal Law § 265.02, [5]), defendant contends that his initial encounter with police amounted to a de facto arrest for which probable cause was lacking. Defendant's contention is without merit.
On the afternoon of November 26, 1990, police officers received a radio dispatch advising them that defendant, a black male wanted on an outstanding parole violation warrant and as a suspect in a recent drive-by shooting, was a passenger in a blue and white car operated by a white female near 410 Clinton Street. When the officers located the car and directed it to pull over, defendant exited the vehicle and began walking away from the officers. The police exited their vehicle, drew their guns and ordered defendant to stop. After conducting a pat-down search for weapons, defendant was detained briefly until another officer arrived at the scene with a photograph from which defendant was positively identified as the individual named in the parole warrant. A subsequent search of the vehicle yielded a loaded .38 caliber revolver concealed beneath a blanket on the front seat where defendant had been seated.
The record supports the suppression court's finding that the radio report, coupled with the police officer's observations at the scene, gave rise to a reasonable suspicion to justify defendant's detention (see, People v Allen, 73 N.Y.2d 378, 380). The actions of the police officers in drawing their weapons did not transform the lawful stop into an arrest (see, People v Clark, 172 A.D.2d 679, 680; People v Davis, 161 A.D.2d 602, lv denied 76 N.Y.2d 855; see also, People v Allen, supra). Inasmuch as the police officers had reason to believe that defendant was armed, they were justified in taking such precautionary measures as were necessary for their own safety (see, People v Chestnut, 51 N.Y.2d 14, 21, cert denied 449 U.S. 1018). The suppression court properly determined that defendant's detention for two minutes while police awaited information to identify defendant positively was proper (see, People v Hicks, 68 N.Y.2d 234; cf., People v Camarre, 171 A.D.2d 1002, lv denied 78 N.Y.2d 953).
Defendant's suppression motion was properly denied. Neither his moving papers nor the proof adduced at the suppression hearing was sufficient to meet defendant's initial burden to demonstrate standing to contest the search (see, CPL 710.60; People v Wesley, 73 N.Y.2d 351, 358-359; People v Sanchez-Reyes, 172 A.D.2d 1034, lv denied 78 N.Y.2d 926). Defendant, a passenger in an automobile owned and operated by his girlfriend, failed to show a legitimate expectation of privacy in the vehicle to support an application to suppress a weapon discovered during a search of the automobile where the People are not relying on the statutory presumption of Penal Law § 265.15 (3) (see, People v Rodriguez, 69 N.Y.2d 159; People v Telfer, 175 A.D.2d 638, lv denied 78 N.Y.2d 1130; People v Cacioppo, 104 A.D.2d 559; cf., People v Millan, 69 N.Y.2d 514). Defendant's remaining contentions are unpreserved and we decline to reach them in the interest of justice.