| People v Carver |
| 2017 NY Slip Op 00724 [147 AD3d 415] |
| February 2, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Kwame Carver, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent.
Judgment, Supreme Court, Bronx County (James M. Kindler, J.), rendered March 20, 2014,convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree,and sentencing him, as a second violent felony offender, to a term of eight years, unanimouslyaffirmed.
The court properly denied defendant's suppression motion. The police had probable cause tostop the car in which defendant was a passenger due to its loud muffler, which constituted aviolation of the Vehicle and Traffic Law. The officer's testimony was sufficient to support theinference that the muffler, itself, was unlawfully loud, notwithstanding that police attention wasalso attracted by additional noise emanating from the car. During the lawful stop, the officer sawa bulge in defendant's waistband, a place closely associated with weapons. Contrary todefendant's assertion that the bulge was unspecified, the officer testified that it appeared to havethe shape of a .22 caliber revolver, even though the officer could not see the complete outline ofa weapon. Accordingly, the court properly determined that the officer's observations providedreasonable suspicion justifying his frisk of the area where he saw the bulge (see People vProchilo, 41 NY2d 759 [1977]).
The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility findings. The police officers' account of their recovery ofthe weapon from defendant was corroborated by defendant's knowledge of the weapon's uniquecharacteristics, which he discussed in a recorded telephone call from prison.
The court properly exercised its discretion in permitting the People to introduce, in redactedform, defendant's recorded telephone conversation. The redaction of the portions in whichdefendant discussed having been advised by his attorney to plead guilty, the prison time he facedand whether the crime would be a felony or misdemeanor if the revolver were inoperable did notviolate the rule of completeness (see People v Dlugash, 41 NY2d 725, 726 [1977]). Therewas nothing exculpatory about the redacted matter, and it was not explanatory of the admittedportion of the conversation (see People v Walker, 285 AD2d 364, 365 [1st Dept 2001],lv denied 97 NY2d 643 [2001]). Although defendant claims that the redacted matterwould have shown that his knowledge of the revolver's unusual condition was actually derivedfrom a conversation with his attorney, that claim is unfounded, and use of the redacted materialfor that [*2]purpose would have been misleading. We haveconsidered and rejected defendant's constitutional argument concerning this issue (see Cranev Kentucky, 476 US 683, 689-690 [1986]), and his request for a reconstruction hearing.Concur—Sweeny, J.P., Acosta, Moskowitz, Kapnick and Kahn, JJ.