| People v Gandy |
| 2011 NY Slip Op 04887 [85 AD3d 1595] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael D.Gandy, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Jaharr S. Pridgen of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered December 22, 2009. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree, criminal possession of a weapon in thethird degree, criminal possession of a controlled substance in the fourth degree and unlawfulpossession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).Supreme Court properly refused to suppress evidence seized from the vehicle in which defendantwas a passenger. We reject defendant's contention that the police illegally stopped the vehicle.The record of the suppression hearing establishes that the vehicle was parked when the officersapproached it in their patrol car and that the patrol car stopped alongside the vehicle and did notblock its ability to move forward or backward (see People v Ocasio, 85 NY2d 982, 984[1995]; People v Black, 59 AD3d1050 [2009], lv denied 12 NY3d 851 [2009]). Further, in view of the prior drugactivity that had occurred in the house near where the vehicle was parked and citizen complaintsof drug activity in that area, the officers possessed an objective, credible reason to approach thevehicle and ask the occupants "what['s] up?" (see People v Ramos, 60 AD3d 1317 [2009], lv denied 12NY3d 928 [2009]; People v Robinson, 309 AD2d 1228 [2003], lv denied 1 NY3d579 [2003]; see generally Ocasio, 85 NY2d at 984-985). One of the officers then exitedthe patrol car and approached the subject vehicle on foot, whereupon he observed a handgun onthe floor in between defendant's feet. Contrary to defendant's further contention, "the court wasentitled to credit [the officer's] testimony" at the suppression hearing that he was standing outsideof the vehicle when he made that observation (People v Washington, 50 AD3d 1590, 1591 [2008]), and the courttherefore properly determined that the weapon was seized pursuant to the plain view doctrine(see generally People v Brown, 96 NY2d 80, 88-89 [2001]; People v Stein, 306AD2d 943 [2003], lv denied 100 NY2d 599 [2003], 1 NY3d 581 [2003]).Present—Centra, J.P., Fahey, Carni, Sconiers and Green, JJ.