| People v Green |
| 2012 NY Slip Op 07316 [100 AD3d 654] |
| November 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoeGreen, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Daniel S.Bresnahan, and Kerona K. Samuels of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered April 11, 2011, convicting him of criminal possession of a weapon inthe second degree, criminal possession of a weapon in the third degree, criminal possession of aweapon in the fourth degree, making an improper turn, and unlawfully operating or driving amotor vehicle on a public highway, upon his plea of guilty, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is affirmed.
"On a motion to suppress physical evidence, the People bear the burden of going forward toestablish the legality of police conduct in the first instance" (People v Hernandez, 40 AD3d 777, 778 [2007]). " 'Probable causedoes not require proof sufficient to warrant a conviction beyond a reasonable doubt but merelyinformation sufficient to support a reasonable belief that an offense has been or is beingcommitted or that evidence of a crime may be found in a certain place' and that the person beingarrested committed the crime or offense" (People v Francis, 44 AD3d 788, 789 [2007], quoting People vBigelow, 66 NY2d 417, 423 [1985]). "That legal conclusion is to be made after considering'all of the facts and circumstances together' " (People v Francis, 44 AD3d at 789, quotingPeople v Bigelow, 66 NY2d at 423). "The credibility determinations of the hearing court'are entitled to great deference on appeal and will not be disturbed unless clearly unsupported bythe record' " (People v Blinker, 80AD3d 619, 620 [2011], quoting People v Baliukonis, 35 AD3d 626, 627 [2006]; see People vProchilo, 41 NY2d 759, 761 [1977]; People v Castro, 73 AD3d 800 [2010]; People v Lynch, 63 AD3d 959[2009]; People v Shackleford, 57AD3d 578 [2008]; People vWhyte, 47 AD3d 852 [2008]).
Contrary to the defendant's contention, the Supreme Court did not err in denying that branchof his omnibus motion which was to suppress physical evidence consisting of a gun, which wasdiscovered under the center console of the defendant's vehicle. The evidence at the suppressionhearing established that in November 2007, there was an ongoing police investigation concerningthe activities of a third party. As part of that investigation, the police had obtained aneavesdropping warrant to monitor the telephone conversations of the third party. On November6, 2007, the police [*2]overheard a conversation between thethird party and a man calling from a telephone number with a Maryland area code. During thisconversation, the caller stated that he was "on [his] way" to the third party's "crib"; that he did notwant to stay there for a long period of time; and that he had his "slammy" on him. At thesuppression hearing, a detective who overhead the conversation, and who subsequently arrestedthe defendant, testified that, based on his training and experience, he undestood the term"slammy" as a reference to a firearm. Within a few minutes thereafter, the defendant arrived atthe third party's house in a vehicle with a Maryland license plate. After having a briefconversation with the third party, the defendant drove away and was followed by the detective,who had set up surveillance outside the third party's residence. The detective testified that hefollowed the defendant's vehicle until the defendant made a right turn without using a signal, atwhich time the detective conducted a "car stop." The detective further testified: "[A]s I wasapproaching [the defendant's vehicle], I could see him lean toward the center console area. Iapproached the vehicle. . . . I asked for a license, registration, insurance card. Hedid not produce a valid driver's license. I asked him to step out of the vehicle. As he stepped outof the vehicle, he was acting in a nervous manner. I placed him under arrest at this time. I placedhim in handcuffs and placed him in the back seat of my car. I then went back to the vehicle to thecenter console area where I observed him lean, and I recovered a firearm."
As the Supreme Court correctly concluded, the aforementioned circumstances did notprovide a basis for a search of the defendant's vehicle as incident to a lawful arrest inasmuch asthe defendant was already restrained when the search began (see Arizona v Gant, 556 US332 [2009]). However, as the court also correctly concluded, these same circumstances didjustify the search pursuant to the separate and distinct "automobile exception" to warrantlesssearches. " '[W]here police have validly arrested an occupant of an automobile, and they havereason to believe that the car may contain evidence related to the crime for which the occupantwas arrested or that a weapon may be discovered or a means of escape thwarted, theymay contemporaneously search the passenger compartment, including any containers foundtherein' " (People v Blasich, 73 NY2d 673, 678-679 [1989], quoting People vBelton, 55 NY2d 49, 55 [1982] [emphasis added]; see People v Galak, 81 NY2d 463,467 [1993]; People v Henderson, 57AD3d 562, 564 [2008]; People vMartin, 28 AD3d 583, 584 [2006]). Here, the intercepted telephone conversation, theobservations of the detective, and his experience as a police officer who understood the term"slammy" as a reference to a firearm provided justification for the search of the defendant'svehicle (see People v Blasich, 73 NY2d at 678-679; see also People v Tambe, 71NY2d 492, 501 [1988]; People vParker, 84 AD3d 1508, 1509 [2011]).
The defendant's remaining contentions are without merit or need not be reached in light ofour determination.
Accordingly, that branch of the defendant's omnibus motion which was to suppress physicalevidence was properly denied. Florio, J.P., Dickerson, Sgroi and Miller, JJ., concur.