Opinion
March 3, 1992
Appeal from the Supreme Court, Bronx County (Joseph Mazur, J.).
The police witnesses, who were credited by the suppression court (see, People v Prochilo, 41 N.Y.2d 759, 761), testified that while on routine patrol, they observed defendant run a red light. After properly stopping defendant (People v Erwin, 42 N.Y.2d 1064; People v Millan, 118 A.D.2d 236, 245, mod on other grounds 69 N.Y.2d 514), and while waiting for him to produce his license and registration, one of the officers observed a firework in plain view on the front floor of defendant's car, and properly ordered defendant to hand it over (People v Rodriguez, 165 A.D.2d 705, lv denied 76 N.Y.2d 1024). As defendant exited the car, the officer observed an open brown paper bag on the console on the driver's seat, which defendant took and placed on the floor in front of the driver's seat, and which the officer believed to contain additional fireworks. In response to a proper inquiry by the officer concerning the contents of the bag (People v Robinson, 74 N.Y.2d 773, cert denied 493 U.S. 966; People v Rodriguez, 167 A.D.2d 122, lv denied 77 N.Y.2d 843), defendant claimed that they contained "boxes". Defendant then tried to get back in the car, but was stopped. The officer looked into the bag, saw two glassine bags he believed to contain a controlled substance, and arrested defendant. A subsequent search of the car revealed heroin on the console and a gun under a seat. At the precinct, defendant volunteered that there were additional fireworks in the trunk.
Under the circumstances of this case, the bag was properly searched (People v Langen, 60 N.Y.2d 170, cert denied 465 U.S. 1028), as falling within the automobile exception to the warrant requirement, rather than as a search incident to arrest (People v Blasich, 73 N.Y.2d 673, 678).
Concur — Murphy, P.J., Wallach, Kupferman, Asch and Smith, JJ.