PEOPLE v. JOHNSON (2005)

Judgment of conviction rendered December 13, 2002 (Seth L. Marvin J. at suppression hearing;  Robert Torres, J. at trial and sentence) affirmed.

 The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   The record supports the court's holding that, in the course of lawfully investigating a radio report of an assault in progress, the arresting police officer saw, in plain view, what immediately appeared to be (and in fact was) the butt of an automatic weapon on the floorboard behind the driver's seat of the defendant's double-parked car.   Application of the plain view exception is not precluded by the officer's candid acknowledgment that he initially was not positive that the square, black object protruding behind the driver's seat was a weapon.   The plain view doctrine, rather than requiring near certainty as to the incriminating nature of the object, “merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief ․ that certain items may be contraband” (Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 [1983], quoted in People v. Batista, 261 A.D.2d 218, 221, 690 N.Y.S.2d 536 [1999], lv. denied 94 N.Y.2d 819, 702 N.Y.S.2d 589, 724 N.E.2d 381 [1999] ).   The suppression record, including the credited police testimony that defendant stated at the scene that he “wanted ․ vengeance” against individuals said to be in the immediate area who had “shot out” his shattered car window, compels a finding that the police had probable cause to associate the square, black object observed inside defendant's car with criminal activity, even though the arresting officer did not know for certain that it was a gun until he retrieved it (see People v. Batista, 261 A.D.2d 218, 690 N.Y.S.2d 536, supra;  see also Koza v. State, 100 Nev. 245, 681 P.2d 44 [1984];  People v. Smith, 101 Ill.App.3d 772, 57 Ill.Dec. 91, 428 N.E.2d 641 [1981] ).

 Also unavailing is defendant's challenge to his conviction on sufficiency and weight of the evidence grounds.   Again, there is no basis for disturbing the court's determinations concerning credibility.   Contrary to defendant's claims, the ballistics evidence presented by the People demonstrated that the gun was operable (see People v. Cavines, 70 N.Y.2d 882, 524 N.Y.S.2d 178, 518 N.E.2d 1170 [1987];  Matter of Shallany S., 11 A.D.3d 414, 783 N.Y.S.2d 567 [2004] ) and there was sufficient evidence from which the factfinder could infer that defendant exercised dominion and control over the gun that was found behind the driver's seat of his nearby car (Penal Law § 10.00[8];  see People v. Rios, 171 A.D.2d 582, 567 N.Y.S.2d 450 [1991], lv. denied 77 N.Y.2d 999, 571 N.Y.S.2d 925, 575 N.E.2d 411 [1991] ).

This constitutes the decision and order of the Court.

PER CURIAM.