People v. Ferreras

231 A.D.2d 471, 647 N.Y.S.2d 740, 1996 N.Y. App. Div. LEXIS 9514

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 1996
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Jerome Hornblass, J., at hearing; Richard Carruthers, J., at trial), rendered July 28, 1994, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him to 5 years probation, unanimously affirmed.

Defendant’s arguments that he did not match the description in the radio report, that his conduct in placing the gun bag behind a video game was ambiguous and the result of unlawful police action, and that he was not in a position to grab the bag are unpreserved as a matter of law, never having been raised before the hearing court (People v Martin, 50 NY2d 1029, 1031; People v Foy, 212 AD2d 446, lv denied 85 NY2d 938), and we decline to review them in the interest of justice. If we were to review them, we would find that defendant’s conduct in stuffing the bag behind the video game before the police had entered the premises and then walking 5 to 10 feet away to stand with other patrons was an abandonment of the bag that justified its being opened by the police (People v Martinez, 80 NY2d 444, 448-449); and that even if the bag were not abandoned, probable cause to search it was provided by the radio report of three men with guns in a pool hall, and the observation of responding police officers of people in the pool hall screaming that the police were coming and of defendant, who matched the description of one of the suspects, stuffing a bag behind a video game (see, People v Graham, 211 AD2d 55, 58, lv denied 86 NY2d 795). The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Concur—Milonas, J. P., Ellerin, Rubin, Ross and Nardelli, JJ.