Opinion
March 2, 1992
Appeal from the Supreme Court, Kings County (Kreindler, J.).
Ordered that the judgment is modified, on the law, by providing that the sentence imposed upon the conviction of criminal possession of a weapon in the second degree shall run concurrently to the sentence imposed upon the conviction of attempted murder in the second degree; as so modified, the judgment is affirmed.
The defendant contends that the police lacked justification for conducting a warrantless search of a couch in his apartment, and that, therefore, the Supreme Court erred in admitting into evidence the gun that was found within his arm's reach underneath the couch. The hearing transcripts indicate that the police were informed that after the defendant shot someone in the street, he ran into his apartment. When the police were outside the apartment door, they heard a gunshot go off inside the apartment, which they then entered forcibly.
We find that the seizure of the gun from underneath the couch was within the "grabbable area" of the defendant and was justified by the officers' need to protect themselves against the possibility that the defendant might gain access to it (see, People v Gokey, 60 N.Y.2d 309, 311; People v Smith, 59 N.Y.2d 454; People v Jakakas, 110 A.D.2d 660).
However, since the defendant's possession of the loaded handgun and the shooting of the victim were, under the facts of his case, both part of the same transaction, we agree that the sentence imposed for the conviction of criminal possession of a weapon in the second degree should run concurrently with the sentence imposed for the conviction of attempted murder in the second degree, and the defendant's sentence is modified accordingly (see, Penal Law § 70.25; see also, People v Jenkins, 176 A.D.2d 348; People v Terry, 104 A.D.2d 572). Rosenblatt, J.P., O'Brien, Ritter and Copertino, JJ., concur.