Opinion
July 13, 1984
Appeal from the Monroe County Court, Mark, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Green and Moule, JJ.
Judgment unanimously affirmed. Memorandum: The court properly denied defendant's motion to suppress a loaded shotgun, a .38 caliber revolver and a blackjack seized from a car defendant Paone was driving in which defendant Rossi was riding as a passenger.
¶ Defendant Rossi has no standing to challenge the search and seizure because he had no legitimate expectation of privacy in the car or the items seized (see Rakas v. Illinois, 439 U.S. 128, 148-149; People v. David L., 56 N.Y.2d 698, revg for reasons stated in the dissenting mem at 81 A.D.2d 893, 895-896; People v. Green, 121 Misc.2d 522).
¶ With respect to defendant Paone, since the officers observed the car cross over a road and drive onto the sidewalk, they had the right to approach the stopped vehicle to investigate a possible traffic infraction (Vehicle and Traffic Law, § 1225; People v. De Bour, 40 N.Y.2d 210, 216, 223) and, as a protective measure, to order the driver out of the car (see Pennsylvania v. Mimms, 434 U.S. 106). When the officers saw the defendants make suspicious hand movements and observed the shotgun on the floor and the revolver protruding from under the front seat armrest, both in plain view illuminated by the interior dome light (see People v Brosnan, 32 N.Y.2d 254; People v. Le Grand, 96 A.D.2d 891, 892; People v. Mangan, 55 A.D.2d 247, 250), they had probable cause to search the car and seize the contraband (see Adams v. Williams, 407 U.S. 143; Terry v. Ohio, 392 U.S. 1, 21-22; cf. People v Harrison, 57 N.Y.2d 470). The officers also had the right to search the trunk and seize the blackjack discovered under the spare tire (see United States v. Ross, 456 U.S. 798, 820-821; People v. Langen, 60 N.Y.2d 170, cert den ___ US ___, 104 S Ct 1287).
¶ We note that the court may have improperly relied upon a prior radio call to the arresting officers (see People v Havelka, 45 N.Y.2d 636; People v. Lypka, 36 N.Y.2d 210; but see People v. Petralia, 62 N.Y.2d 47 ). However, irrespective of the call, the officers as stated above had an articulable reason to stop defendants and search the car.