Summary
affirming conviction of defendant observed crouching over a nylon bag from which a gun was recovered
Summary of this case from Black v. McGinnisOpinion
December 28, 1992
Appeal from the Supreme Court, Kings County (Marrus, J.).
Ordered that the judgment is affirmed.
We find that the hearing court properly declined to suppress a gun which was found in plain view in a public place and which was not the product of a search. "[T]he sighting of the * * * gun in plain view was inevitable, and the drawing of the police officers' guns was not a sine qua non of its discovery" (People v Simms, 57 A.D.2d 579, 580). "Contraband coming into the plain view of an officer who has the right to be in the position to have that view is subject to seizure" (People v Moorer, 58 A.D.2d 878, 879). Here, the butt of the gun was jutting out of a bag which was placed in a public place and was thus subject to seizure.
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant possessed the gun, and that the gun was loaded and operable. The defendant was first observed in a crouched position at the location where the nylon bag, from which the handle of the gun was protruding, was found. He was the only individual in the vicinity of the bag, and was stopped and frisked within seven to eight feet of the bag. The nylon bag, among other things, also contained four photographs of the defendant. This evidence was legally sufficient to establish the defendant's constructive possession of the weapon (see, People v Williams, 43 N.Y.2d 725).
There was legally sufficient evidence to establish that the gun was loaded and operable (see, People v Cavines, 70 N.Y.2d 882; People v Totten, 161 A.D.2d 678). The detectives testified to hearing what sounded like three gunshots moments before the gun was seized. When they inspected the gun they found it to contain three live rounds and three spent shells. Moreover, the ballistics report also indicated that the "gun and ammo tested are operable" and the failure to call the ballistics expert did not render the report inadmissible (see, People v Magri, 3 N.Y.2d 562).
The defendant's remaining contentions are either unpreserved for appellate review or meritless. Sullivan, J.P., Lawrence, Eiber and Santucci, JJ., concur.