PEOPLE v. THEN (1998)

Judgment, Supreme Court, New York County (Renee White, J.), rendered February 15, 1995, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree (two counts), and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.

 The motion court properly denied defendant's motion to suppress the guns found in the livery cab in which the defendant and his cohort were riding as passengers.   The police had reasonable suspicion to investigate and make a limited protective search of the vehicle in light of the information provided to them by a woman at the scene that there had been a robbery and that the defendant and his cohort had guns (see, People v. Carvey, 89 N.Y.2d 707, 710, 657 N.Y.S.2d 879, 680 N.E.2d 150;  People v. Vehap, 234 A.D.2d 210, 652 N.Y.S.2d 8, lv. denied 90 N.Y.2d 865, 661 N.Y.S.2d 192, 683 N.E.2d 1066;  People v. Cisnero, 226 A.D.2d 279, 641 N.Y.S.2d 286, lv. denied 88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246).   The woman's account to the police was also sufficient to provide the police with probable cause to search the vehicle without a warrant (see, People v. Galak, 81 N.Y.2d 463, 467, 600 N.Y.S.2d 185, 616 N.E.2d 842).

 Evidence of the criminal conduct of a severed codefendant was properly admitted as highly probative of defendant's possession (see, People v. Sanford, 205 A.D.2d 477, 614 N.Y.S.2d 13, lv. denied 84 N.Y.2d 910, 621 N.Y.S.2d 527, 645 N.E.2d 1227) as well as being necessary to complete the narrative of events leading to defendant's arrest (see, People v. Till, 87 N.Y.2d 835, 637 N.Y.S.2d 681, 661 N.E.2d 153).

 The trial court properly instructed the jury on the automobile presumption with respect to both guns and included the livery driver exception (see, PL § 265.15[3] ).   Although the cab driver was not a defendant, defendant's trial strategy of imputing possession to the driver rendered instruction on the exception necessary to the jury's understanding of the presumption (People v. Hines, 173 A.D.2d 730, 731, 570 N.Y.S.2d 613).   Defendant's remaining claims are unpreserved and without merit.

MEMORANDUM DECISION.