Opinion
KA 01-00582
March 21, 2003.
Appeal from a judgment of Oneida County Court (Dwyer, J.), entered August 19, 1999, convicting defendant after a jury trial of, inter alia, criminal possession of a weapon in the third degree (three counts).
V. MICHAEL LICCIONE, WHITESBORO, For Defendant-appellant.
MICHAEL A. ARCURI, District Attorney, UTICA (CARL J. BOYKIN Of Counsel), For Plaintiff-respondent.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
County Court properly denied defendant's suppression motion. The police, who were assisting parole officers executing a warrant for the arrest of a codefendant, approached defendant in a motor vehicle parked outside the residence where the warrant was being executed and asked defendant his name. Upon shining a flashlight at defendant, the police observed a handgun in plain view on the seat between his legs. The police drew their weapons, opened the vehicle door and took defendant into custody. Contrary to the contention of defendant, the police had an "objective, articulable reason" for approaching him to ascertain his identity, inasmuch as he had driven the codefendant to the residence (People v. Hollman, 79 N.Y.2d 181, 194; see People v. Locano, 209 A.D.2d 278, 279; People v. Evans, 175 A.D.2d 456, 457, lv denied 79 N.Y.2d 856). Although defendant challenges the use of a flashlight by the police to illuminate the interior of the motor vehicle while they were speaking to him, "the shining of a flashlight into an area of plain view has been determined not to amount to an unreasonable intrusion" (People v. Fells, 279 A.D.2d 706, 709-710, lv denied 96 N.Y.2d 758; see People v. Wilson, 284 A.D.2d 960, 961, lv denied 96 N.Y.2d 943, 943). Contrary to defendant's further contention, the court's determination to credit the testimony of the police officer at the suppression hearing is entitled to great deference, and we perceive no reason to disturb that credibility determination (see People v. Evans, 298 A.D.2d 401, lv denied 99 N.Y.2d 558). Defendant's contention that the court's Sandoval ruling was erroneous is not preserved for our review (see People v. Combo, 291 A.D.2d 887, lv denied 98 N.Y.2d 650; People v. Serrano, 166 A.D.2d 200, 201, lv denied 76 N.Y.2d 990) and, in any event, defendant has failed to meet his burden of providing a sufficient factual record to enable us to review that contention (see Combo, 291 A.D.2d 887). Defendant also failed to preserve for our review his remaining contention concerning the court's Sandoval ruling (see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]).