| People v Vernon |
| 2018 NY Slip Op 06401 [164 AD3d 1657] |
| September 28, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Emerson Vernon, Jr., Appellant. |
Matthew D. Nafus, Scottsville, for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (Kevin M. Linder of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered December 8, 2015. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendantcontends that Supreme Court erred in refusing to suppress a handgun that the police found duringa search of defendant's person and statements subsequently made by defendant to the police onthe ground that the search of defendant was not lawful. We reject that contention.
At a suppression hearing, the People presented the testimony of a police officer who hadbeen involved in 40 or 50 firearms-related arrests and had received training in investigating suchcases. The officer testified that he was riding as a passenger in the patrol vehicle driven by hispartner when he saw defendant about five feet away, walking on the sidewalk to the officer'sright. The officer further testified that he exited the vehicle and conducted a search of defendantafter he observed an L-shaped outline in the left front pocket of defendant's tight white jeans,which he recognized as a handgun. The handgun was lying flat against defendant's body, at hisside. Although the encounter occurred at approximately 11:00 p.m., the area was well lit by astreet light that was across the street from where defendant was walking.
We conclude that the officer's "testimony established that the police had reasonable suspicionto believe that . . . defendant had a gun and justified a search" (People v McClendon, 92 AD3d959, 960 [2d Dept 2012], lv denied 19 NY3d 865 [2012]; see People vProchilo, 41 NY2d 759, 762 [1977]; People v Williams, 111 AD3d 448, 448 [1st Dept 2013], lvdenied 22 NY3d 1204 [2014]). The court credited the testimony of the officer and, contraryto defendant's contention, "[t]here is no basis for disturbing the . . . court'scredibility determinations, which are supported by the record" (People v Martorell, 49 AD3d 426,427 [1st Dept 2008], lv denied 10 NY3d 866 [2008]; see People v Johnson, 138 AD3d 1454, 1454 [4th Dept 2016],lv denied 28 NY3d 931 [2016]). Present—Peradotto, J.P., Carni, Lindley, Curran andWinslow, JJ.