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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Gerue SULLIVAN, etc., Defendant-Appellant.

Decided: February 18, 1999

ROSENBERGER, J.P., NARDELLI, TOM and ANDRIAS, JJ. Richard Nahas, for Respondent. Richard Joselson, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Micki Scherer, J.), rendered December 9, 1996, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.   Judgment, same court (Herbert Adlerberg, J.), rendered March 7, 1997, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree, and imposing a concurrent sentence, unanimously affirmed.

 The hearing court properly denied defendant's motion to suppress.   We see no basis to disturb the hearing court's credibility findings.   After an undisputedly lawful stop of a livery cab, the police saw a gun protruding from an unzipped bag on the floor of the front passenger seat, which defendant had occupied prior to being removed from the cab.   The cab driver testified that defendant pushed the bag, which he had brought into the cab, with his feet as the police approached.   Defendant lacked automatic standing to challenge any aspect of the search or seizure since the People were not relying solely on the statutory presumption to establish his possession of the gun (see, People v. Paulino, 216 A.D.2d 238, 629 N.Y.S.2d 22, lv. denied 87 N.Y.2d 849, 638 N.Y.S.2d 608, 661 N.E.2d 1390;  People v. Tejada, 81 N.Y.2d 861, 597 N.Y.S.2d 626, 613 N.E.2d 532).   The gun was properly seized while in open view.


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