| People v Washington |
| 2012 NY Slip Op 00401 [91 AD3d 534] |
| Jnury 24, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Timothy Washington, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered October 17,2007, as amended November 29, 2007, convicting defendant, after a jury trial, of two counts eachof criminal possession of a weapon in the second and third degrees, and sentencing him, as asecond violent felony offender, to an aggregate term of 12½ years, unanimously affirmed.
On the original appeal (People vWashington, 82 AD3d 570 [2011]), this Court rejected the suppression hearing court'srationale for denying suppression and remitted the matter to that court for determination of analternative basis for upholding the search advanced by the People at the hearing but not reachedby the court. Upon remittal, the hearing court again denied defendant's suppression motion,finding that the search of the car in which defendant was a passenger was justified as a protectivemeasure. We agree and now affirm.
Uniformed police officers observed a car carrying five passengers make an illegal turn,followed it and pulled it over. As they got out of their patrol car, the officers saw the threebackseat passengers making "a lot" of "furtive" movements, including bending forward and thenlooking back at the officers. This conduct objectively appeared to be an effort to hide somethingfrom the police. The driver produced a registration, but was unable to produce a driver's license.
Furthermore, the occupants of the car were not fully complying with the officers'instructions. Although the officers told the men to stay in the car, a passenger began to get out,and the driver got out of the car and shouted that his license was in the trunk. In addition, thecar's trunk had popped open, blocking the officer's view of the car's interior.
While one officer spoke to the driver by the trunk of the car, the other officer removed thepassengers, including defendant, who had been sitting in the middle of the back seat. This officerleaned inside, pointed his flashlight into the car, and saw a revolver on the floor.
This evidence supports the hearing court's finding, following our remittitur, that the officermade a lawful protective check for weapons. The totality of the information available to thepolice supported a reasonable conclusion that there was a weapon in the car that presented anactual and specific danger to their safety, and the limited intrusion into the back seat area, wherethe officers had seen furtive movements, was justified as a protective search for weapons (seePeople v Mundo, 99 NY2d 55, 57-59 [2002]; People v Anderson, 17 AD3d 166, 167-168[*2][2005]).
Turning to the other issues raised on the original appeal, we find no basis for reversal. Theverdict was based on legally sufficient evidence and was not against the weight of the evidence(see People v Danielson, 9 NY3d342, 348-349 [2007]). There was extensive evidence that defendant possessed two loadedhandguns found in the car in which he had been riding. In addition to the automobilepresumption (Penal Law § 265.15 [4]) and defendant's proximity to the weapons, there wastestimony that directly implicated defendant as the supplier of the weapons. The court's juryinstructions appropriately conveyed the permissive nature of the automobile presumption, andthat the burden of proof never shifts from the People.
We decline to invoke our interest of justice jurisdiction to dismiss the noninclusoryconcurrent counts (see e.g. People v Martinez, 8 AD3d 8 [2004], lv denied 3 NY3d677 [2004]). Concur—Andrias, J.P., Friedman, Acosta and DeGrasse, JJ.