21 A.D.2d 904 | N.Y. App. Div. | 1964
Appeal by defendant Montgomery from a judgment of the Supreme Court, Kings County, rendered January 4, 1963 after a jury trial, convicting him of conspiracy, as a felony (Penal Law, § 580-a) and of carrying a dangerous weapon, as a felony (Penal Law, § 1897) and imposing sentence. This defendant was indicted and tried jointly with one Harvey Shaw, whose appeal has been decided herewith (21 A D 2d 908). Judgment affirmed. On this record, we find: (1) that both the defendants Montgomery and Shaw were lawfully arrested at Fulton Street and Bedford Avenue; (2) that the search of the ear in question started at the time and place of the arrest; (3) that there was a brief, reasonable suspension of the search because of a situation which arose at the scene of the arrest and which made completion of the search at that place inadvisable; and (4) the search at the station house, immediately following such brief suspension, was merely a continuation of the search initiated at the time and place of the arrest. Hence, we hold that the search was incidental to and contemporaneous with a lawful arrest; that the search was valid; and that the guns discovered by the search were properly admitted into evidence. While we do not approve of the prosecutor’s comment, in summation, that “ in his opinion ” the evidence conclusively showed defendants’ guilt (cf. People v. Lovello, 1 N Y 2d 436), we believe the trial court’s prompt instructions to the jury relative to such remark effectively eliminated any possible prejudice to the defendants. Beldock, P. J., Ughetta, Kleinfeld, Christ and Brennan JJ., concur.