PEOPLE v. LESANE

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

The PEOPLE of the State of New York, Respondent, v. James LESANE, Defendant-Appellant.

Decided: June 26, 2001

SULLIVAN, P.J., ELLERIN, WALLACH, RUBIN and BUCKLEY, JJ. Christopher P. Marinelli, for Respondent. James Lesane, Pro Se.

Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered November 16, 1998, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and aggravated unlicensed operation of a motor vehicle in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 5 years and 180 days, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility.   Since a loaded pistol was present inside an automobile that had been solely occupied by defendant just prior to the discovery of the weapon, the jury properly applied the statutory presumption of possession (Penal Law § 265.15[3] ), as charged by the court.   Moreover, the fact that the vehicle was registered in defendant's name and that the gun was concealed in a car compartment for which defendant had a key on his key chain provided further proof that he exercised dominion and control over the weapon.

 Defendant's suppression motion was properly denied.   The warrantless search of the impounded vehicle was proper, since it was conducted pursuant to a routine police procedure (People v. Galak, 80 N.Y.2d 715, 719, 594 N.Y.S.2d 689, 610 N.E.2d 362), which provided for a preliminary inventory search in order to secure valuables when the vehicle is initially left in an unsecured area.   Since the opening of the locked metal compartment comported with established routine, it was proper (People v. Gonzalez, 62 N.Y.2d 386, 477 N.Y.S.2d 103, 465 N.E.2d 823).

Defendant's ineffective assistance claim rests largely on facts dehors the record and thus would require a CPL 440.10 motion.   While defendant made such a motion, he did not obtain leave to appeal and thus his motion submissions are not before this Court.   On the present record, we conclude that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584).