| People v Gerow |
| 2011 NY Slip Op 04778 [85 AD3d 1319] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Justin A.Gerow, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered March 19, 2010, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the third degree.
Police officers entered defendant's apartment in the City of Elmira, Chemung County, in thecourse of executing an arrest warrant for an unrelated incident, and observed several items and anodor, leading them to suspect that a marihuana "grow operation" was being conducted on thepremises. While conducting the arrest, one of the officers also saw a "knuckle knife" on a table(see Penal Law § 265.00 [5-b]). Based upon their observations, the police obtaineda search warrant allowing them to search for and seize any items related to marihuana"packaging, processing, consumption or distribution," specifically including "records, receipts,books, writings or photographs" and "[a]ny safes or lock boxes which may contain such records,paraphernalia, US Currency, Controlled Substances or Marijuana and which can be readilyopened at the residence." In the course of the subsequent search, the police saw a locked cabinet,which they opened with a key located on a nearby desktop, and found inside an unassembled,[*2]sawed-off shotgun and two shells.[FN1]Defendant was subsequently indicted on two counts of criminal possession of a weapon in thethird degree, and County Court denied his suppression motion following a hearing. He pleadedguilty to one count of criminal possession of a weapon in the third degree based on possession ofthe shotgun[FN2]and was sentenced to a prison term of 1 to 3 years. Defendant appeals, and we affirm.
Although firearms were not included within the search warrant, discovery of the shotgun waswithin the scope of the warrant, as it specifically allowed the police to open and search the lockedcabinet (see People v Tutora, 116 AD2d 607, 608 [1986]). Upon lawfully opening thecabinet and inadvertently discovering the gun, its "incriminating character . . . [was]immediately apparent," and thus the plain view doctrine applied to its discovery (People vBrown, 96 NY2d 80, 89 [2001]; seePeople v Lamont, 21 AD3d 1129, 1131 [2005], lv denied 6 NY3d 835 [2006];People v Cranmer, 167 AD2d 566, 567 [1990], lv denied 77 NY2d 904 [1991];compare People v McCullars, 174 AD2d 118, 121 [1992], appeal dismissed 80NY2d 800 [1992]).
Defendant's further argument that Penal Law § 265.02 violates the SecondAmendment of the US Constitution is unpreserved and, in any event, lacks merit (see People v Perkins, 62 AD3d1160, 1161 [2009], lv denied 13 NY3d 748 [2009]; see also People v Hughes, 83 AD3d960, 961-962 [2011]).
Peters, J.P., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The shotgun barrel and theweapon as assembled were of illegal length, measuring, respectively, less than 18 and 26 inches(see Penal Law § 265.00 [3]).
Footnote 2: As defendant had previouslybeen convicted of a crime, he was charged with criminal possession of a weapon in the thirddegree (see Penal Law § 265.02 [1]).