| People v Velasquez |
| 2013 NY Slip Op 06595 [110 AD3d 835] |
| October 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Roberto Velasquez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered December 19, 2011, convicting him of criminal possession of aweapon in the second degree, 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 omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's motion to suppress physical evidence was properly denied, based onthe plain view doctrine, which "rests on the premise that police should be able to seizeincriminating evidence in plain view if they had the right to be where they were whenthey saw it. . . . [L]aw enforcement officers may properly seize an item in'plain view' without a warrant if (i) they are lawfully in a position to observe the item; (ii)they have lawful access to the item itself when they seize it; and (iii) the incriminatingcharacter of the item is immediately apparent" (People v Brown, 96 NY2d 80,88-89 [2001]; see People v Diaz, 81 NY2d 106, 110 [1993]; see also Hortonv California, 496 US 128, 136-137 [1990]).
Here, the first two criteria were satisfied by the hearing court's factual finding, whichis supported by the record, that the defendant's wife consented to the entry by a paroleofficer and two police officers into the defendant's home and to the opening of abedroom closet in that home (see People v Gomez, 204 AD2d 656, 657 [1994]).With respect to the third criterion, the seizure of a distinctive Smith & Wesson gun box,which was recognized as such by the officers, was justified by the immediately apparentincriminating nature of the box, thus giving the officers probable cause to believe that itcontained contraband (see Texas v Brown, 460 US 730, 741 [1983]; UnitedStates v Davis, 690 F3d 226, 235 [4th Cir 2012]).
Moreover, we reject the defendant's argument that he was improperly charged withthe class C felony of criminal possession of a weapon in the second degree, because hepossessed the loaded firearm in his home. "Where a defendant has been previouslyconvicted of any crime, the possession of a loaded firearm is, per se, a class C felony['criminal possession a weapon in the [*2]second degree,'Penal Law § 265.03 (3)], regardless of whether the possessor possessed the firearmin his or her 'home or place of business' (see Penal Law §§ 265.01[1]; 265.02 [1], [4]). There is no 'exception' " to this rule (People v Sams, 19Misc 3d 1133[A]; 2008 NY Slip Op 50993[U], *2-3 [Sup Ct, NY County 2008]; see People v Jones, 103 AD3d411, 412 [2013]; People vHughes, 83 AD3d 960, 961 [2011], lv granted 19 NY3d 961 [2012]).Rivera, J.P., Balkin, Leventhal and Cohen, JJ., concur.