PEOPLE v. HARVEY (1997)

Judgments, Supreme Court, Bronx County (John Stackhouse, J.), rendered January 12, 1995 and May 11, 1994, respectively, convicting defendants, after a jury trial, of criminal possession of a weapon in the third degree and criminal possession of stolen property in the fourth degree, and sentencing each of them to consecutive terms of 31/212 to 7 and 2 to 4 years, respectively, unanimously affirmed.

 Defendants' suppression motions were properly denied.   The record supports the motion court's finding that, based on the entire chain of events, the police officer approached the van occupied by defendants with reasonable suspicion that defendants had committed a recent gunpoint robbery and that they were armed (see, People v. Allen, 73 N.Y.2d 378, 379-80, 540 N.Y.S.2d 971, 538 N.E.2d 323).   The officer's subsequent plain view observation of jewelry taken during the recent robbery, of a gun holster and of bullets, all contained in an open bag in the van, provided the officer with probable cause to arrest and to search the van and the bag (see, People v. Landy, 59 N.Y.2d 369, 376-77, 465 N.Y.S.2d 857, 452 N.E.2d 1185;  People v. Sanchez, 216 A.D.2d 207, 629 N.Y.S.2d 215, lv. denied 87 N.Y.2d 850, 638 N.Y.S.2d 609, 661 N.E.2d 1391).   We see no reason to disturb the court's credibility determinations.

 The court properly excluded defendant Harvey's five-year-old child and newborn infant from the courtroom.   The record sufficiently establishes that the children were actually, as well as potentially, disruptive (see, People v. Daniels, 237 A.D.2d 529, 655 N.Y.S.2d 582, lv. denied 90 N.Y.2d 857, 661 N.Y.S.2d 183, 683 N.E.2d 1057).

The trial court properly denied defendant Rogers's request to give a circumstantial evidence charge (see, People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  People v. de Jesus, 178 A.D.2d 180, 577 N.Y.S.2d 40, lv. denied 79 N.Y.2d 946, 583 N.Y.S.2d 200, 592 N.E.2d 808).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was ample evidence of defendants' constructive possession of the bonds (see, People v. Daddona, 81 N.Y.2d 990, 599 N.Y.S.2d 530, 615 N.E.2d 1014, supra;  People v. Holley, 237 A.D.2d 642, 654 N.Y.S.2d 462), and we reject defendant Rogers's argument that the court's charge limited the constructive possession theory to the weapon.   The value of the savings bond was properly established (see, Penal Law § 155.20[1],[2];  People v. Jenkins, 61 A.D.2d 705, 403 N.Y.S.2d 751, lv. denied 44 N.Y.2d 954, 408 N.Y.S.2d 1034, 380 N.E.2d 344).

We perceive no abuse of sentencing discretion.

We have considered defendants' other claims and find them to be without merit.

MEMORANDUM DECISION.