Opinion
September 1, 1994
Appeal from the Supreme Court, Bronx County, Ira Globerman, J., William C. Donnino, J.
In light of the great weight accorded to the determination of the hearing court, which saw and heard the sole witness, a police officer, who testified at the suppression hearing (People v Prochilo, 41 N.Y.2d 759, 761) we find that the hearing court, upon crediting that testimony, properly denied suppression of the guns recovered from the van. In response to an anonymous 911 call of "men with guns in a white van" in the area of 1153 Boston Road, during the evening hours of May 4, 1990, the uniformed officer and his partner properly approached the only parked white van in the area in furtherance of the common law right of inquiry (see, People v. Chin, 192 A.D.2d 413, lv denied 81 N.Y.2d 1071). Upon not seeing anyone seated in the front, the officer used his flashlight to illuminate the interior of the van, an act which does not constitute a search within the Fourth Amendment (People v. Riefler, 195 A.D.2d 1024, lv denied 82 N.Y.2d 725). Upon observing the defendant lying face down on the back floor of the van with his head towards the passenger side, the officer properly asked said occupant to open the door, in furtherance of his right to inquire and as a safety precaution. When defendant complied, the officer observed a gun on the floor of the van adjacent to the passenger door. Since the gun was in plain view of the officer, suppression was properly denied. (People v McFadden, 194 A.D.2d 567, lv denied 82 N.Y.2d 756; People v Sanchez, 192 A.D.2d 562, lv dismissed 82 N.Y.2d 759.)
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v. Contes, 60 N.Y.2d 620), defendant's guilt was proven beyond a reasonable doubt and is not against the weight of the evidence. (People v. Bleakley, 69 N.Y.2d 490.) The statutory presumption (Penal Law § 265.15) was rationally applicable herein given defendant's presence in the van and the accessibility of the contraband to him. (People v. Warrington, 192 A.D.2d 735, lv denied 82 N.Y.2d 760; People v. Tutt, 194 A.D.2d 575, lv denied 82 N.Y.2d 760.)
Concur — Sullivan, J.P., Carro, Ellerin, Asch and Tom, JJ.