| People v Eure |
| 2007 NY Slip Op 10036 [46 AD3d 386] |
| December 20, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamesEure, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J., at hearing; Bruce Allen,J., at jury trial and sentence), rendered December 15, 2006, convicting defendant of criminalpossession of a weapon in the third degree and criminal possession of a controlled substance inthe seventh degree, and sentencing him, as a persistent violent felony offender, to an aggregateterm of 12 years to life, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). The police officers lawfully stopped the livery cab inwhich defendant was a passenger after they saw it change lanes without signaling (see Peoplev Robinson, 97 NY2d 341, 348-349 [2001]; People v Rice, 44 AD3d 247 [2007]). After turning on their lightsand siren, the officers observed defendant shifting his body to his left, leading them to believe hemight be concealing something. As they approached the car, they saw defendant turning to hisleft two more times. Given defendant's movements, the police possessed, at least, the necessaryfounded suspicion to inquire if defendant had any weapons or contraband in his possession(see e.g. People v Joseph, 38AD3d 403 [2007], lv denied 9 NY3d 866 [2007]; People v Crespo, 292AD2d 177 [2002], lv denied 98 NY2d 709 [2002]). When defendant answered that hepossessed cocaine, the police properly searched him and found a small amount of cocaine. Oncethe officers discovered the drugs, they were justified in searching the back seat under theautomobile exception, since there was reason to believe that defendant's bags containedadditional drugs or a weapon, especially given defendant's prior furtive movements (seePeople v Langen, 60 NY2d 170 [1983], cert denied 465 US 1028 [1984]; Peoplev Belton, 55 NY2d 49, 55 [1982]; People v Faines, 297 AD2d 590, 595 [2002],lv denied 99 NY2d 558 [2002]). Accordingly, the police lawfully obtained the pistol thatthey found in one of the bags.
Defendant's challenge to the sufficiency of the evidence establishing that he possessed theweapon is unpreserved (see People v Gray, 86 NY2d 10 [1995]), and we decline toreview it in the interest of justice. Were we to review this claim, we would find that the evidenceof possession was overwhelming. There is no basis for disturbing the jury's determinationsconcerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). The driver ofthe [*2]livery cab testified that he had just checked his car on hisbreak, finding no items left by any other passenger, and that defendant was his first and onlycustomer after his break. He saw defendant enter the car carrying at least one bag, and the bags inthe back seat were next to defendant when the police pulled the car over. Under thesecircumstances, the evidence clearly supported the conclusion that the bags belonged to defendant.We likewise reject defendant's claim that the verdict was against the weight of the evidence.
The jurisdiction of New York County was established by a preponderance of the evidence(see People v Greenberg, 89 NY2d 553, 555-556 [1997]). The court charged the jury thatit could find jurisdiction if defendant either possessed the contraband in New York County, orwithin 500 yards of the county line (CPL 20.40 [4] [c]). Defendant clearly possessed thecontraband in New York County, as the police had followed the car from Manhattan into BronxCounty. Moreover, the officers measured the distance from the county line to the area ofdefendant's arrest, and found it to be within 500 yards. Concur—Lippman, P.J.,Mazzarelli, Saxe, Williams and Buckley, JJ.