Opinion
23 KA 19–01452
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Michael STENSON, Defendant–Appellant.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ) and criminal possession of a firearm (§ 265.01–b), defendant contends that County Court erred in refusing to suppress the handgun seized following a search of his vehicle. We affirm.
The evidence at the suppression hearing established that two police officers approached defendant's vehicle because it was parked in violation of a sign prohibiting "stopping from here to [the] corner." While the first officer spoke with defendant, the second officer used her flashlight to look inside the vehicle, where she observed what appeared to be a gun magazine protruding from under a shirt on the floor of the rear passenger side of the vehicle. When the officers returned to their vehicle, the second officer told the first officer what she had seen inside the vehicle. The officers returned to defendant's vehicle, confirmed the observation of the magazine, and asked defendant to step out of the vehicle, whereupon he was frisked. A subsequent search of the vehicle led to the discovery of a handgun under the shirt.
We conclude that the court did not err in refusing to suppress the evidence in question. Initially, the officers were permitted to approach the vehicle and speak to defendant because the vehicle was illegally parked (see generally People v. Ellis, 62 N.Y.2d 393, 396, 477 N.Y.S.2d 106, 465 N.E.2d 826 [1984] ; People v. Amos, 140 A.D.3d 1683, 1684, 31 N.Y.S.3d 729 [4th Dept. 2016], lv denied 28 N.Y.3d 925, 40 N.Y.S.3d 354, 63 N.E.3d 74 [2016] ; People v. Semanek, 30 A.D.3d 547, 548, 816 N.Y.S.2d 569 [2d Dept. 2006] ). Having lawfully approached defendant's vehicle, the second police officer's observation of a gun magazine in plain view inside the vehicle provided probable cause for the police to suspect that there was also a gun inside the car, justifying the subsequent search (see People v. Lewis, 117 A.D.3d 751, 752, 988 N.Y.S.2d 626 [2d Dept. 2014], lv denied 24 N.Y.3d 1085, 1 N.Y.S.3d 12, 25 N.E.3d 349 [2014] ; People v. Johnson, 253 A.D.2d 677, 677, 678 N.Y.S.2d 10 [1st Dept. 1998], lv denied 92 N.Y.2d 1050, 685 N.Y.S.2d 428, 708 N.E.2d 185 [1999] ).
We further conclude that the court did not err in crediting the police officers' testimony with respect to whether the magazine was in plain view (see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ; People v. Fick, 167 A.D.3d 1484, 1485, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ; People v. Ramos, 122 A.D.3d 462, 465, 997 N.Y.S.2d 24 [1st Dept. 2014] ). Although the police officers' testimony and the surveillance video of the police encounter differed with respect to how long the officers waited to take action after they first observed the gun magazine, we conclude that this discrepancy did not render the officers' testimony incredible as a matter of law because the testimony was not obviously tailored to ameliorate any constitutional concerns, nor was it "impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Grunwald, 29 A.D.3d 33, 36, 810 N.Y.S.2d 437 [1st Dept. 2006], lv denied 6 N.Y.3d 848, 816 N.Y.S.2d 754, 849 N.E.2d 977 [2006] [internal quotation marks omitted]; see People v. Tyler, 166 A.D.3d 1556, 1556–1557, 88 N.Y.S.3d 724 [4th Dept. 2018], lv denied 32 N.Y.3d 1179, 97 N.Y.S.3d 617, 121 N.E.3d 244 [2019], reconsideration denied 33 N.Y.3d 954, 100 N.Y.S.3d 182, 123 N.E.3d 841 [2019] ).