People v. Tutt
| Decision Date | 01 June 1993 |
| Citation | 194 A.D.2d 575,598 N.Y.S.2d 324 |
| Parties | The PEOPLE, etc., Respondent, v. Anthony TUTT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Steven R. Bernhard, Garden City, for appellant.
Denis Dillon, Dist. Atty., Mineola (Douglas Noll and Peter Shapiro, of counsel), for respondent.
Before ROSENBLATT, J.P., and MILLER, EIBER and PIZZUTO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Nassau County (Santagata, J.), rendered June 17, 1991, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The defendant's contention that the gun recovered from the automobile should have been suppressed is without merit. The stop of the car was legal, as the officers observed the driver commit violations of the Vehicle and Traffic Law (see, People v. Ellis, 62 N.Y.2d 393, 477 N.Y.S.2d 106, 465 N.E.2d 826). Once the car was legally stopped, the officers were legally permitted to ask the passengers to exit the vehicle because the car was stopped in an area with a high crime rate; the passengers were behaving nervously; the rear windows were tinted, preventing the officers from fully seeing the passengers (see, People v. McLaurin, 70 N.Y.2d 779, 521 N.Y.S.2d 218, 515 N.E.2d 904; People v. Fraser, 169 A.D.2d 840, 565 N.Y.S.2d 209); and the driver had no license and said that he did not know who owned the car. While the rear passengers were exiting the vehicle, an officer spotted a gun on the floor of the car. Because the gun was in the plain view of the officer, suppression was properly denied (see, People v. Arias, 170 A.D.2d 235, 565 N.Y.S.2d 513; People v. Steven McFadden, 194 A.D.2d 567, 598 N.Y.S.2d 325 [decided herewith].
The defendant's contention that it was improper to apply the automobile presumption (Penal Law § 265.15[3] is also without merit. The gun was found underneath the foot of a rear passenger in the car occupied by the defendant. The jury was free to discredit this passenger's testimony, which was intended to show that the defendant did not know that the gun was in the car (see, People v. Delvas, 181 A.D.2d 740, 581 N.Y.S.2d 70). The defendant's further contention that the charge was defective because the jury was not instructed to make a factual determination as to whether the gun found under the occupant's foot was "on his person" (so as to exclude the other...
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