THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v IQUAN D. CARTER, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
60 AD3d 1103, 875 NYS2d 303
Defendant was arrested after a traffic stop and was thereafter indicted on two counts of criminal possession of a weapon in the third degree and one count of unlawful possession of marihuana. Following a suppression hearing, County Court (Herrick, J.) denied defendant‘s motion to suppress the evidence found during the traffic stop. Defendant was found guilty of one count of criminal possession of a weapon in the third degree and unlawful possession of marihuana.1 He was sentenced to a prison term of six years with three years of postrelease supervision. Defendant now appeals and we affirm.
First, we find that County Court properly denied defendant‘s motion to suppress the marihuana and the weapon seized at the time of the traffic stop. Officer Edward Vogel testified at the suppression hearing that, while he was on patrol with his partner on a rainy day, they effected a traffic stop of the car in which defendant was a front seat passenger because the vehicle was being operated in violation of
The mere opening of a car door during a traffic stop is a minimal intrusion into an occupant‘s expectation of privacy and is justified under certain circumstances, including the necessity of securing an officer‘s safety (see People v David L., 81 AD2d 893, 895-896 [1981, Hopkins, J.P., and Weinstein, J, dissenting], revd on dissenting mem below 56 NY2d 698 [1982], cert denied 459 US 866 [1982]). Here, given the driver‘s failure to have a license, the behavior of the backseat passenger, the smell of marihuana coming from the car and Vogel‘s concern for his own safety, we find that Vogel was justified in opening the back door of the car (see People v Otero, 255 AD2d 158, 159 [1998], lv denied 92 NY2d 1052 [1999]). Moreover, in the course of a legal traffic stop, the officers were also entitled to order the occupants out of the vehicle even without any detailed reason for believing they possessed a weapon (see People v Robinson, 74 NY2d 773, 774-775 [1989], cert denied 493 US 966 [1989]). In addition, having seen the marihuana in plain view, the officers had probable cause to arrest defendant and search the car (see People v Garcia, 30 AD3d 833, 834 [2006]). Inasmuch as the weapon was also in plain view, it was properly seized (see People v Brown, 96 NY2d 80, 88 [2001]). Because the searches were constitutional, County Court properly admitted the evidence seized during the traffic stop.
We also disagree with defendant‘s contention that the verdict is repugnant. When determining whether a verdict is repugnant, our review is limited to ascertaining what elements of the crimes as charged were described to the jury (see People v Tucker, 55 NY2d 1, 7 [1981]; People v Harris, 50 AD3d 1387, 1389 [2008]; People v Rust, 233 AD2d 778, 779 [1996], lv denied 89 NY2d 988 [1997]). Here, defendant was charged with two counts of criminal possession of a weapon in the third degree, but found guilty of only one of them. Supreme Court properly instructed the jury that to find defendant guilty of the first count, it would have to find, beyond a reasonable doubt, that defendant “possessed a firearm[,] [t]hat the defendant did so knowingly[,]
We also reject defendant‘s challenges to the legal sufficiency and weight of the evidence, which center on the element of possession. Defendant‘s possession of the weapon may be established through the doctrine of constructive possession, which is based on the exercise of dominion and control over the area in which an item is found (see People v Edwards, 39 AD3d 1078, 1079 [2007]). Vogel testified at trial that, after observing a marihuana cigarette in the front console ashtray and requesting that defendant exit the car, he reached into the car to obtain the cigarette. Vogel explained that, as he entered the car to remove the cigarette, he looked down and “saw the butt of a handgun in between the passenger seat and the center console area.” He then grabbed the gun and saw that it was loaded with seven rounds of ammunition.
“Viewing [this] evidence in the light most favorable to the People” (People v Brown, 46 AD3d 949, 951 [2007], lv denied 10 NY3d 808 [2008]), the People demonstrated, as required, that defendant was in an automobile in which a loaded weapon was present (see
We also discern no error in Supreme Court‘s instruction to the jury as to the doctrine of constructive possession. In relying on the pattern jury instructions, the court properly explained the doctrine and stressed, among other things, that the jury was permitted—but not required—to infer possession based upon defendant‘s presence in the car with the weapon (see People v Drake, 7 NY3d 28, 34 [2006]; People v Waters, 30 AD3d 681, 682 [2006], lv denied 7 NY3d 796 [2006]).
Finally, we decline to disturb defendant‘s sentence. Given the nature of the offense and defendant‘s criminal history, Supreme Court did not abuse its discretion in denying defendant youthful offender status (see
Cardona, P.J., Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.