Opinion
February 18, 1999
Appeal from the Supreme Court, New York County (Micki Scherer, J.).
The hearing court properly denied defendant's motion to suppress. We see no basis to disturb the hearing court's credibility findings. After an undisputedly lawful stop of a livery cab, the police saw a gun protruding from an unzipped bag on the floor of the front passenger seat, which defendant had occupied prior to being removed from the cab. The cab driver testified that defendant pushed the bag, which he had brought into the cab, with his feet as the police approached. Defendant lacked automatic standing to challenge any aspect of the search or seizure since the People were not relying solely on the statutory presumption to establish his possession of the gun (see, People v. Paulino, 216 A.D.2d 238, lv denied 87 N.Y.2d 849; People v. Tejada, 81 N.Y.2d 861). The gun was properly seized while in open view.
Concur — Rosenberger, J. P., Nardelli, Tom and Andrias, JJ.