GANDY, MICHAEL D., PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
705
KA 09-02631
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MICHAEL D. GANDY, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JAHARR S. PRIDGEN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered December 22, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree, criminal possession of a weapon in the third
degree, criminal possession of a controlled substance in the fourth
degree and unlawful possession of marihuana.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, criminal possession of a
weapon in the second degree (Penal Law § 265.03 [3]). Supreme Court
properly refused to suppress evidence seized from the vehicle in which
defendant was a passenger. We reject defendant’s contention that the
police illegally stopped the vehicle. The record of the suppression
hearing establishes that the vehicle was parked when the officers
approached it in their patrol car and that the patrol car stopped
alongside the vehicle and did not block its ability to move forward or
backward (see People v Ocasio, 85 NY2d 982, 984; People v Black, 59
AD3d 1050, lv denied 12 NY3d 851). Further, in view of the prior drug
activity that had occurred in the house near where the vehicle was
parked and citizen complaints of drug activity in that area, the
officers possessed an objective, credible reason to approach the
vehicle and ask the occupants “what[’s] up?” (see People v Ramos, 60
AD3d 1317, lv denied 12 NY3d 928; People v Robinson, 309 AD2d 1228, lv
denied 1 NY3d 579; see generally Ocasio, 85 NY2d at 984-985). One of
the officers then exited the patrol car and approached the subject
vehicle on foot, whereupon he observed a handgun on the floor in
between defendant’s feet. Contrary to defendant’s further contention,
“the court was entitled to credit [the officer’s] testimony” at the
suppression hearing that he was standing outside of the vehicle when
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KA 09-02631
he made that observation (People v Washington, 50 AD3d 1590, 1591),
and the court therefore properly determined that the weapon was seized
pursuant to the plain view doctrine (see generally People v Brown, 96
NY2d 80, 88-89; People v Stein, 306 AD2d 943, lv denied 100 NY2d 599,
1 NY3d 581).
Entered: June 10, 2011 Patricia L. Morgan
Clerk of the Court