People v. Famiglietti

191 A.D.2d 372, 595 N.Y.S.2d 201, 1993 N.Y. App. Div. LEXIS 2826

Opinion

—Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered January 31, 1992, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of lx/i to 3 years, unanimously affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

The police officer’s questioning of defendant as to the contents of his bag after he observed him looking around while carrying a long thin object wrapped tightly in a brown paper bag, which he briefly secreted under a car and then retrieved, was a permissible request for information, since the bag appeared to the trained officer to be "unusual” (People v Hollman, 79 NY2d 181, 191) and that it "probably contained a shotgun”.

Nor are there grounds upon which to disturb the trial court’s factual findings that the police encounter was not a forcible stop. The officer pulled his car up on the street next to where defendant was walking on the sidewalk, did not order defendant to stop, touch him, or draw his pistol. Defendant stopped of his own accord, waited for the officer to approach, and told the officer that he was carrying a sawed-off shotgun after only one question as to what was in the bag. Concur— Milonas, J. P., Rosenberger, Wallach and Ross, JJ.