| People v Campbell |
| 2008 NY Slip Op 00983 [48 AD3d 204] |
| February 5, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Terrence Campbell, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J., on suppression motion;Edward J. McLaughlin, J., at jury trial and sentence), rendered August 1, 2006, convictingdefendant of criminal possession of a weapon in the third degree, and sentencing him, as asecond violent felony offender, to a term of 6½ years, unanimously affirmed.
The court properly denied defendant's suppression motion. It is undisputed that the policelawfully arrested defendant on probable cause to believe he would be arriving on a certain bus atthe Port Authority Bus Terminal while armed with a weapon. As he was being arrested, headmitted he had a firearm in his open tote bag, a few steps away from him. From a lawfulvantage point, an officer looked into the open bag and saw a firearm in plain view. Even if wewere to accept defendant's assertion that this constituted the search of a closed container, wewould still find it to be lawful. The bag had not been reduced to the exclusive control of thepolice, who acted reasonably to ensure their safety and that of bystanders (see People vSmith, 59 NY2d 454 [1983]; People v Wylie, 244 AD2d 247 [1997], lvdenied 91 NY2d 946 [1998]).
During deliberations, the jury sent a note to the court asking for a re-reading of the elementsof the crimes with which defendant was charged. The court informed the parties that "[t]hey havea note, they want elements." After the jurors were brought into the courtroom, the courtresponded to the jury's note by re-reading the elements of the crimes. Although the court shouldhave followed the procedure outlined in People v O'Rama (78 NY2d 270, 277-278[1991]), it at least fulfilled its "core responsibility" (People v Kisoon, 8 NY3d 129, 135 [2007]) to notify counsel of thecontents of the note. The court did not prevent counsel from knowing the specific language of thenote, or from suggesting different responses from those the court provided (compare People vStarling, 85 NY2d 509, 516 [1995], with People v Cook, 85 NY2d 928 [1995]).Accordingly, we do not find any mode of proceedings error that would be exempt frompreservation requirements, and we decline to review defendant's claim in the interest of justice.Furthermore, viewed in light of the presumption of regularity (see People v Velasquez, 1 NY3d44, 48 [2003]), we conclude that counsel was afforded the opportunity to read the note andsuggest a response before the jury entered the courtroom.
We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Mazzarelli,Friedman, Sweeny and Moskowitz, JJ.[*2]