People v. Ballard

Mar 28, 2005
Versions:16 A.D.3d 697
794 N.Y.S.2d 60
2005 N.Y. App. Div. LEXIS 3260

Ordered that the judgment is affirmed.

The hearing court properly denied these branches of the defendant’s omnibus motion which were to suppress a loaded pistol recovered from the vehicle in which he was an occupant, and a subsequent statement he made to police. Based upon the specific description of the vehicle allegedly involved in a shooting one to two weeks earlier, which was confirmed before the investigatory traffic stop, the hearing court properly found that there was reasonable suspicion that the driver or the occupants of the vehicle had committed, were committing, or were about to commit a crime (see People v Spencer, 84 NY2d 749 [1995], cert denied 516 US 905 [1995]; People v Ingle, 36 NY2d 413 [1975]). Accordingly, the stop of the vehicle was justified.

The hearing court properly concluded that the operator of the vehicle voluntarily consented to the search (see People v Richards, 119 AD2d 597 [1986]). The defendant, a mere passenger, lacked standing to challenge the search of a lawfully-stopped vehicle with respect to which he demonstrated no legitimate expectation of privacy. Moreover, where, as here, the defendant’s possession of the weapon was not based solely on a statutory presumption of possession, the doctrine of automatic standing does not apply (see People v Millan, 69 NY2d 514 [1987]; People v Poree, 240 AD2d 597 [1997]).

A reasonable person, innocent of any crime, would not have believed that he was in custody at the time the defendant made his statement (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]; People v Parsad, 243 AD2d 510 [1997]). Accordingly, the hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress his statement (id.).

The defendant’s remaining contentions either are unpreserved for appellate review or without merit. Cozier, J.P., S. Miller, Mastro and Skelos, JJ., concur.