| People v Warren |
| 2015 NY Slip Op 00398 [124 AD3d 699] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tito Warren, Appellant. |
Stuart D. Rubin, Brooklyn, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered September 25, 2013, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of those branches of the defendant'somnibus motion which were to suppress his statements to law enforcement officials andphysical evidence.
Ordered that the judgment is affirmed.
On June 6, 2011, an anonymous 911 caller reported that he was looking out hiswindow and could see a black man wearing a red shirt in possession of a gun sitting inthe driver's seat of a black car that was parked in front of his address. The callerdescribed two other people who were also in the parked car. When the police arrived,they observed the defendant, a male wearing a red shirt, walk away from a black carparked in front of the address provided and observed two passengers in the car. One ofthe passengers informed the police that his brother, who had been driving the car, justwent around the corner. The defendant, who was stopped approximately two blocks fromthe car, admitted that he was the driver and accompanied police officers back to wherethe car was parked. A search of the car revealed a gun in the trunk.
The defendant correctly contends that the Supreme Court erred in concluding that helacked standing to contest the search of the car. However, the court correctly concludedthat the People satisfied their burden of establishing that the police had probable cause tosearch the vehicle in order to locate the gun (see People v Tieman, 112 AD3d 975, 976 [2013]), becausethe 911 caller was reliable and had a sufficient basis of knowledge for the informationprovided to the police (see Spinelli v United States, 393 US 410 [1969];Aguilar v Texas, 378 US 108 [1964]; People v DiFalco, 80 NY2d 693[1993]; People v Rahman,85 AD3d 1062 [2011]; People v Whittle, 48 AD3d 714 [2008]; see alsoNavarette v California, 572 US &mdash, &mdash, 134 S Ct 1683, 1688-1689[2014]). Moreover, after detaining the defendant, the police had probable cause tobelieve that the gun he reportedly possessed was located inside the car he had beendriving and, thus, the warrantless search of the vehicle was proper (see People vBelton, 55 NY2d 49 [1982]; People v Rahman, 85 AD3d 1062 [2011]; People vWhittle, 48 AD3d at 714-715; cf. People v Scott, 18 AD3d 285 [2005]). Accordingly, thecourt properly denied that branch of the defendant's motion which was to suppressphysical evidence.
[*2] The Supreme Courtalso properly denied that branch of the defendant's motion which was to suppress thestatement he made to the police admitting that he was the driver of the car. The policehad reasonable suspicion to stop the defendant based upon the description provided bythe 911 caller and their observations upon arriving at the scene (see People v DeBour, 40 NY2d 210 [1976]; People v Palmer, 84 AD3d 1414 [2011]; People v Holland, 4 AD3d375 [2004]; People v Sharpe, 259 AD2d 639, 639 [1999]). Moreover, thecourt properly determined that the defendant's statement was not the product of custodialinterrogation and, thus, the statement was admissible despite the lack of priorMiranda warnings (see Miranda v Arizona, 384 US 436 [1966];People v Cruz, 90 NY2d 961 [1997]; People v Morales, 65 NY2d 997[1985]; People v Yukl, 25 NY2d 585, 588-592 [1969]; People v Andrango, 106 AD3d461 [2013]).
Contrary to the defendant's contention, the admission at trial of the 911 caller'sstatements did not violate his right to confrontation, as the primary purpose of thestatements was to obtain an emergency response to an individual with a firearm; thus,they were not testimonial in nature (see Davis v Washington, 547 US 813,826-832 [2006]; People vDockery, 107 AD3d 913, 913-914 [2013]; People v Legere, 81 AD3d 746, 749-750 [2011]).Moreover, the People established a foundation for the admission of the 911 call byestablishing a complete chain of custody and demonstrating that the condition of therecording was unchanged (see People v Ely, 68 NY2d 520 [1986]; People v Collins, 90 AD3d1069, 1069 [2011]).
The defendant was not deprived of the effective assistance of counsel. The defendanthas failed to demonstrate the absence of strategic or other legitimate explanations forcounsel's alleged failure in declining the court's proposed charge regarding thevoluntariness of his statement (see People v Barboni, 21 NY3d 393 [2013]; People vBenevento, 91 NY2d 708 [1998]). Moreover, a review of the record establishes thatcounsel provided the defendant with meaningful representation (see People vBenevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137, 147[1981]).
The defendant's contention that the Supreme Court erred in charging the automobilepresumption is unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, the court properly instructed the jury on the automobile presumption, as there wasevidence that the defendant was in the car shortly before the gun was discovered undercircumstances which made it unlikely that the weapon was placed in the car after heexited (see People v Maye,64 AD3d 795, 795-796 [2009]; People v Heizman, 127 AD2d 609[1987]).
The defendant's contention that he was deprived of a fair trial based upon a commentmade by the Supreme Court regarding redacted portions of the 911 call is unpreservedfor appellate review (see CPL 470.05 [2]) and, in any event, without merit.
Contrary to the defendant's contention, the testimony of the police officers providedsufficient corroboration for admission of the 911 caller's statements regarding thedefendant's actual possession of the gun, and the Supreme Court did not err in chargingthe jury on the theory of actual possession (see People v Vasquez, 88 NY2d 561[1996]; People v Brown, 80 NY2d 729 [1993]; see also People v Ross, 112AD3d 972 [2013]; People vNeloms, 8 AD3d 136 [2004]). Dillon, J.P., Hinds-Radix, Maltese and Barros,JJ., concur.