| People v Edwards |
| 2011 NY Slip Op 02029 [82 AD3d 1005] |
| March 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Hakim Edwards, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas S. Burka, andJill Oziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered May 17, 2007, convicting him of criminal possession of a weapon in the third degreeupon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Gary, J.), of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is affirmed.
The suppression court correctly determined that the police had probable cause to stop thelivery cab in question (see People v Robinson, 97 NY2d 341 [2001]; People v Graham, 54 AD3d 1056[2008]; People v Guzman, 153 AD2d 320 [1990]). Since the stop was lawful, andbecause a gun was observed in plain view on the floor of the back of the cab where the defendantwas seated, the gun was lawfully seized (see Wong Sun v United States, 371 US 471, 488[1963]).
The trial court properly admitted into evidence, at the defendants' trial, testimony by thelivery driver that, on the day of the defendant's arrest, the driver did not have discussions withany of the passengers who rode in the cab before the defendant did, about a gun in the back seatarea. Despite the defendant's objection, such testimony did not constitute hearsay as there was no"out-of-court statement which [was] offered to prove the truth of its content" (People v Gibian, 76 AD3d 583,596 [2010], citing Prince, Richardson on Evidence § 8-101 [Farrell 11th ed]; seePeople v Huertas, 75 NY2d 487, 491-492 [1990]; People v Kass, 59 AD3d 77, 86-87 [2008]).
The defendant's constitutional challenge to the persistent violent felony offender statute isunpreserved for appellate review (see CPL 470.05 [2]), and, in any event, is withoutmerit (see People v Leon, 10 NY3d122 [2008], cert denied 554 US 926 [2008]; People v Mendez, 71 AD3d 696 [2010]).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Mastro, J.P., Chambers, Roman and Cohen, JJ., concur.