Opinion
2014–09881 Ind.No. 2646/12
10-23-2019
The PEOPLE, etc., Respondent, v. Michael SIMPSON, Appellant.
Paul Skip Laisure, New York, N.Y. (Alexis A. Ascher of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Kathryn A.A. O'Neill of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Kathryn A.A. O'Neill of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
The defendant was a passenger in a vehicle in which the police found a loaded gun. We agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress physical evidence, to wit, the gun. The search was not illegal. The defendant does not dispute that the initial stop of the vehicle based on traffic violations was lawful. Further, the officers' conduct in approaching the vehicle and opening the passenger door was an appropriate security measure, based on the tinted windows and the movement observed by the officers in the backseat of the vehicle, and the officers' concern for their safety (see People v. Funderbunk, 122 A.D.3d 515, 997 N.Y.S.2d 63 ; People v. Edwards, 222 A.D.2d 603, 635 N.Y.S.2d 274 ; People v. Vazquez, 135 A.D.2d 896, 522 N.Y.S.2d 294 ; People v. Green, 133 A.D.2d 170, 518 N.Y.S.2d 831 ). Further, the officers' observations of items in plain view gave them probable cause to search the passenger compartment of the vehicle without a warrant, pursuant to the automobile exception to the warrant requirement (see People v. Blasich, 73 N.Y.2d 673, 681, 543 N.Y.S.2d 40, 541 N.E.2d 40 ; People v. Henderson, 57 A.D.3d 562, 564, 868 N.Y.S.2d 299 ).
At the trial, the defendant's guilt was established in part by recordings of the defendant's phone conversations from when he was in jail, during which he admitted that he agreed to hold the gun for one of his companions. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the second degree beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's remaining contentions are without merit.
SCHEINKMAN, P.J., HINDS–RADIX, LASALLE and BARROS, JJ., concur.