People v. Velasquez

• Citation: 972 N.Y.S.2d 678,2013 N.Y. Slip Op. 06595,110 A.D.3d 835
• Parties: The PEOPLE, etc., respondent, v. Roberto VELASQUEZ, appellant.
• Decision Date: 09 October 2013
• Court: New York Supreme Court Appellate Division

110 A.D.3d 835
972 N.Y.S.2d 678
2013 N.Y. Slip Op. 06595

The PEOPLE, etc., respondent,
v.
Roberto VELASQUEZ, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 9, 2013.

[972 N.Y.S.2d 679]

Epstein & Conroy, Brooklyn, N.Y. (David B. Epstein of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 19, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, 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 motion to suppress physical evidence was properly denied, based on the plain view doctrine, which “rests on the premise that police should be able to seize incriminating evidence in plain view if they had the right to be where they were when they saw it. [L]aw enforcement officers may properly seize an item in ‘plain view’ without a warrant if (i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent” ( People v. Brown, 96 N.Y.2d 80, 88–89, 725 N.Y.S.2d 601, 749 N.E.2d 170;see People v. Diaz, 81 N.Y.2d 106, 110, 595 N.Y.S.2d 940, 612 N.E.2d 298;see also Horton v. California, 496 U.S. 128, 136–137, 110 S.Ct. 2301, 110 L.Ed.2d 112).

Here, the first two criteria were satisfied by the hearing court's factual finding, which is supported by the record, that the defendant's wife consented to the entry by a parole officer and two police officers into the defendant's home and to the opening of a bedroom closet in that home ( see People v. Gomez, 204 A.D.2d 656, 657, 613 N.Y.S.2d 24). With respect to the third criterion, the seizure of a distinctive Smith & Wesson gun box, which was recognized as such by the officers, was justified by the immediately apparent incriminating nature of the box, thus giving the officers probable cause to believe that it contained contraband ( see Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 75 L.Ed.2d 502;United States v. Davis, 690...