Opinion
February 21, 1991
Appeal from the Supreme Court, New York County, Ira Beal, J.
We reject defendant's argument that the testimony of the police officers at the suppression hearing is incredible as a matter of law. The People met their burden of showing the legality of the police conduct by offering evidence that the officers were lawfully in the hallway in an apartment building when they observed what they believed was contraband, in plain view, through an open apartment door. (People v Quinones, 61 A.D.2d 765. ) Thus, their entry into the apartment in question, where they observed cocaine and drug paraphernalia in plain view, with defendant standing next to the contraband, was lawful. (See, e.g., People v Jackson, 41 N.Y.2d 146.) The record reveals ample support for the hearing court's determination to deny suppression of the physical evidence and statements. (See, e.g., People v Rivera, 121 A.D.2d 166, affd 68 N.Y.2d 786.)
There was no basis for the trial court to sua sponte, order a competency hearing; defendant was aware of the nature of the charges and proceedings involved, was present throughout the trial, and testified in his own behalf. (See, CPL art 730; People v Gensler, 72 N.Y.2d 239, cert denied 488 U.S. 932.)
Finally, although the trial court's charge with respect to possession could have been more precisely phrased, the charge, as a whole, conveyed the correct rule to apply in arriving at the verdict, and none of defendant's asserted charge imperfections were such as to warrant reversal of defendant's conviction (see, People v Canty, 60 N.Y.2d 830), particularly where the alleged error was not preserved.
Concur — Murphy, P.J., Rosenberger, Wallach, Kupferman and Smith, JJ.