PEOPLE v. KIRKLAND (1997)

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered December 9, 1994, convicting defendant, after a jury trial, of two counts of criminal possession of a controlled substance in the third degree and of unlawful possession of marijuana, and sentencing him, as a second felony offender, to two concurrent terms of 6 to 12 years and an unconditional discharge, unanimously affirmed.

Defendant's suppression motion was properly denied.   Defendant has failed to preserve his contention that the police lacked probable cause to believe that the bag seized from a car he was driving contained contraband (People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920), and we decline to review it in the interest of justice.   In any event, were we to address it, we would find it to be without merit.   Since the officer knew that defendant was wanted for drug-related activities and an assault on another officer committed a short time before defendant was seen sitting in a parked car with a passenger, and since the officer had previously arrested defendant for attempted murder, the officer had probable cause to believe that a bag, seen dropping from defendant's lap when defendant was removed from the car and handcuffed, contained drugs or a weapon.   Therefore, the officer properly seized and searched it (compare, People v. Langen, 60 N.Y.2d 170, 469 N.Y.S.2d 44, 456 N.E.2d 1167, cert denied 465 U.S. 1028, 104 S.Ct. 1287, 79 L.Ed.2d 690, with, People v. Torres, 74 N.Y.2d 224, 544 N.Y.S.2d 796, 543 N.E.2d 61).   The search and seizure was further justified by the fact that the passenger was still seated in the car and the bag was within her grabbable area (see, People v. Alston, 195 A.D.2d 396, 600 N.Y.S.2d 688).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Issues of credibility were properly presented to the jury, and we see no reason to disturb its findings (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

MEMORANDUM DECISION.