McGivern, J.
This is an appeal from a judgment entered June 10, 1968, County of New York, convicting the defendant, after trial before a court and jury, of the crime of possession of a weapon as a felony (Penal Law, § 265.05).
The appeal is singular in that the District Attorney in his brief on this appeal, agreeing with the defendant, states ‘1 that under the circumstances of this case, the search of the automobile was improper and, accordingly, concede that the judgment be reversed.” We however, do not agree. Nor need we accept his suggestion. ‘ ‘ Confessions of error are, of course, entitled to and given great weight, but they do not ‘ relieve this Court of the performance of the judicial function. ’ Young v. United States, 315 U. S. 257, 258 (1942).” (Sibron v. New York, 392 U. S. 40, 58.)
As we read the record of the suppression hearing and the trial, the defendant offering no evidence, the following facts emerge: Patrolman Beedenbender of the New York City Police Department was on radio motor patrol on December 5, 1967. At about 2:45 p.m., at about 153rd Street and Broadway, Manhattan, he descried an automobile bearing a Virginia license plate. In the car were three men. At the wheel was a man he recognized; he had arrested him as recently as August for a violation of section 1752 of the Penal Law (narcotics; dismissed) and concerning him he had information from the Bureau of Criminal Identification that there was an outstanding warrant for his arrest, for a violation of section 1308 of the Penal Law (criminally receiving stolen property). At the corner of 153rd Street and Amsterdam Avenue, the Patrolman stopped the vehicle. • The driver said ‘ What did I do now? ” The officer requested him to produce his driver’s credentials and directed him to a nearby precinct station house for further investigation. This done, the officer verified that the defendant was in fact a wanted man, and that the warrant for him was still in force and effect. On the spot, he placed him under arrest, and proceeding out of doors, he searched the vehicle, which meanwhile [195]*195had been under continued guard. Under the front seat, on the driver’s side, he found a loaded .45 calibre revolver. The other two occupants of the car were then immediately placed under arrest. The defendant was searched. On him was found “ a .45 calibre shell with a partial load clip broken off, attached to the primer cap.” On the main trial, (Mr. Justice Arthur Markewich) the testimony demonstrated this bullet fitted the gun and the gun was the defendant’s.
As for the time element involved, the following colloquy appears in the record of the suppression hearing (Mr. Justice Jacob Markowitz) :
“ Q. In fact, officer, in order to get to the car you had to go down the stairs back onto the first floor; is that correct? A. Yes, sir.
“ Q. Then you had to go out of the precinct and onto the street; is that true? A. Out of the station house to the car which was parked immediately in front, yes, sir.
‘ the court : That took probably, to go down a flight of steps and walk out the front door, how long did it take you?
“ the witness :Well, your Honor, the time lapse itself was entirely taken up in verifying the fact that the warrant and so forth was still in force.
“ the court: We’re talking about —
‘ ‘ the witness : Approximately a minute, a minute and a half. ’ ’ And later on we find the following:
“ Q. What was your purpose in making the search? A. It’s customary after a defendant is placed under arrest to search both the defendant and any vehicle that he may occupy.
‘ the court : That is police practice ?
‘ ‘ the witness : Right, sir.
“ the court: And it’s recognized as police practice?
“ the witness : Yes, sir.
1 ‘ the court : In fact, those are your instructions ?
“ the witness: Correct, sir.”
And the court (Mr. Justice Jacob Markowitz) in his opinion, said, ‘ ‘ I am satisfied that the search of the automobile happened within minutes after the defendant was taken to the police station ”.
We conclude that on the record before us, there is revealed a sufficient unity of time and place, attendant upon the defendant’s arrest to justify the search. (Terry v. Ohio, 392 U. S. 1, 30; Cooper v. California, 386 U. S. 58; Sibron v. New York, 392 U. S. 40; see, also, People ex rel. Muhammad v. Mancusi, 301 F. Supp. 1100 [U. S. Dist. Ct., S. D. N. Y., July 21, 1969].) The constitutional validity of a warrantless search must be ‘ ‘ decided [196]*196in the concrete factual context of the individual case ” (Sibron v. New York, supra, p. 59); and the privilege against governmental intrusion ‘ ‘ must be shaped by the context in which it is asserted ” (Terry v. Ohio, supra, p. 9). The rubric of police conduct must be measured by the reasonableness of a particular search or in the light of particular circumstances. The exigent circumstances justifying the incidental search of the car include not only the contemporaneous preceding arrest of defendant but the continued occupancy of the car by his two guarded companions, a fact which called for a neutralization of possible exposure to danger and loss of valid custody. The fact that it was a recognized police practice to search cars occupied by persons lawfully arrested does not mitigate against the validity of the search incident to the arrest under the facts here disclosed.
To the foregoing conclusion, the case of Preston v. United States (376 U. S. 364) is not a contrary holding. In that case, the car had been towed away some distance to a garage. Here, there was continued occupancy of the vehicle at the scene by the defendant’s two companions, under unbroken surveillance. There was neither remoteness of time nor place. As Preston said (p. 367): “Unquestionably, when a person is lawfully arrested, the police have a right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons ”. And the New York cases are similar. (People v. Montgomery, 21 A D 2d 904; People v. Hatch, 25 A D 2d 606; People v. Moschitta, 25 A D 2d 686. See, also, People v. Goldstein, 60 Misc 2d 745.)
In the case of People ex rel. Muhammad v. Mancusi (supra) the defendant was arrested at a bank, and his brief case taken from him. Twenty minutes later, at the F.B.I. headquarters, at another part of town, the brief case was searched, without a warrant. Despite the difference of both time and geography, the court, distinguishing
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McGivern, J.
This is an appeal from a judgment entered June 10, 1968, County of New York, convicting the defendant, after trial before a court and jury, of the crime of possession of a weapon as a felony (Penal Law, § 265.05).
The appeal is singular in that the District Attorney in his brief on this appeal, agreeing with the defendant, states ‘1 that under the circumstances of this case, the search of the automobile was improper and, accordingly, concede that the judgment be reversed.” We however, do not agree. Nor need we accept his suggestion. ‘ ‘ Confessions of error are, of course, entitled to and given great weight, but they do not ‘ relieve this Court of the performance of the judicial function. ’ Young v. United States, 315 U. S. 257, 258 (1942).” (Sibron v. New York, 392 U. S. 40, 58.)
As we read the record of the suppression hearing and the trial, the defendant offering no evidence, the following facts emerge: Patrolman Beedenbender of the New York City Police Department was on radio motor patrol on December 5, 1967. At about 2:45 p.m., at about 153rd Street and Broadway, Manhattan, he descried an automobile bearing a Virginia license plate. In the car were three men. At the wheel was a man he recognized; he had arrested him as recently as August for a violation of section 1752 of the Penal Law (narcotics; dismissed) and concerning him he had information from the Bureau of Criminal Identification that there was an outstanding warrant for his arrest, for a violation of section 1308 of the Penal Law (criminally receiving stolen property). At the corner of 153rd Street and Amsterdam Avenue, the Patrolman stopped the vehicle. • The driver said ‘ What did I do now? ” The officer requested him to produce his driver’s credentials and directed him to a nearby precinct station house for further investigation. This done, the officer verified that the defendant was in fact a wanted man, and that the warrant for him was still in force and effect. On the spot, he placed him under arrest, and proceeding out of doors, he searched the vehicle, which meanwhile [195]*195had been under continued guard. Under the front seat, on the driver’s side, he found a loaded .45 calibre revolver. The other two occupants of the car were then immediately placed under arrest. The defendant was searched. On him was found “ a .45 calibre shell with a partial load clip broken off, attached to the primer cap.” On the main trial, (Mr. Justice Arthur Markewich) the testimony demonstrated this bullet fitted the gun and the gun was the defendant’s.
As for the time element involved, the following colloquy appears in the record of the suppression hearing (Mr. Justice Jacob Markowitz) :
“ Q. In fact, officer, in order to get to the car you had to go down the stairs back onto the first floor; is that correct? A. Yes, sir.
“ Q. Then you had to go out of the precinct and onto the street; is that true? A. Out of the station house to the car which was parked immediately in front, yes, sir.
‘ the court : That took probably, to go down a flight of steps and walk out the front door, how long did it take you?
“ the witness :Well, your Honor, the time lapse itself was entirely taken up in verifying the fact that the warrant and so forth was still in force.
“ the court: We’re talking about —
‘ ‘ the witness : Approximately a minute, a minute and a half. ’ ’ And later on we find the following:
“ Q. What was your purpose in making the search? A. It’s customary after a defendant is placed under arrest to search both the defendant and any vehicle that he may occupy.
‘ the court : That is police practice ?
‘ ‘ the witness : Right, sir.
“ the court: And it’s recognized as police practice?
“ the witness : Yes, sir.
1 ‘ the court : In fact, those are your instructions ?
“ the witness: Correct, sir.”
And the court (Mr. Justice Jacob Markowitz) in his opinion, said, ‘ ‘ I am satisfied that the search of the automobile happened within minutes after the defendant was taken to the police station ”.
We conclude that on the record before us, there is revealed a sufficient unity of time and place, attendant upon the defendant’s arrest to justify the search. (Terry v. Ohio, 392 U. S. 1, 30; Cooper v. California, 386 U. S. 58; Sibron v. New York, 392 U. S. 40; see, also, People ex rel. Muhammad v. Mancusi, 301 F. Supp. 1100 [U. S. Dist. Ct., S. D. N. Y., July 21, 1969].) The constitutional validity of a warrantless search must be ‘ ‘ decided [196]*196in the concrete factual context of the individual case ” (Sibron v. New York, supra, p. 59); and the privilege against governmental intrusion ‘ ‘ must be shaped by the context in which it is asserted ” (Terry v. Ohio, supra, p. 9). The rubric of police conduct must be measured by the reasonableness of a particular search or in the light of particular circumstances. The exigent circumstances justifying the incidental search of the car include not only the contemporaneous preceding arrest of defendant but the continued occupancy of the car by his two guarded companions, a fact which called for a neutralization of possible exposure to danger and loss of valid custody. The fact that it was a recognized police practice to search cars occupied by persons lawfully arrested does not mitigate against the validity of the search incident to the arrest under the facts here disclosed.
To the foregoing conclusion, the case of Preston v. United States (376 U. S. 364) is not a contrary holding. In that case, the car had been towed away some distance to a garage. Here, there was continued occupancy of the vehicle at the scene by the defendant’s two companions, under unbroken surveillance. There was neither remoteness of time nor place. As Preston said (p. 367): “Unquestionably, when a person is lawfully arrested, the police have a right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons ”. And the New York cases are similar. (People v. Montgomery, 21 A D 2d 904; People v. Hatch, 25 A D 2d 606; People v. Moschitta, 25 A D 2d 686. See, also, People v. Goldstein, 60 Misc 2d 745.)
In the case of People ex rel. Muhammad v. Mancusi (supra) the defendant was arrested at a bank, and his brief case taken from him. Twenty minutes later, at the F.B.I. headquarters, at another part of town, the brief case was searched, without a warrant. Despite the difference of both time and geography, the court, distinguishing Preston, sensibly said, and so say we here: ‘ ‘ Under the facts of this case as set forth above, I find that the search was not remote in time or place from the arrest ’ within the contemplation of the decided cases.”
The recent case of Chimel v. California (395 U. S. 752) is not in disharmony with the view of the majority herein. That case dealt with the search of an apartment, without a search warrant, whereas we are considering the search of an automobile occupied by the companions of a criminal, lawfully arrested, which automobile could have and actually did have a concealed weapon. And this weapon could have been used against the police officers to effect an escape. Thus, the search of the vehicle, under ‘ the [197]*197facts and circumstances — the total atmosphere of the case ”, was a sufficiently grave emergency, incident to defendant’s lawful arrest, and a wholly rational and reasonable procedure. In support of this view, Chimel significantly says: “ Our holding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants ‘ where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. ’ Carroll v. United States, 267 U. S. 132, 153; see Brinegar v. United States, 338 U. S. 160.” (Justice Stewart speaking for the majority, p. 764, n: 9.) The dissent in Chimel also gave recognition to this distinction, stating: ‘ ‘ Even Mr. Justice Frankfurter, joined in dissent in Babinowits by Mr. Justice Jackson, admitted that there was an exception to the search-warrant requirement in cases of necessity, and noted that this applied, for example, to vehicles which could readily be moved. 339 U. S. 56, at 73.” (Justice White, p. 773, n. 3, Justice Black joining in the dissent.)
Further, the Chimel case was decided on June 23, 1969, is “ fully prospective ” and its newly defined constitutional limits may not be given retroactive effect to encompass the instant conviction entered June 10, 1968. (United States v. Wild, 417 F. 2d 89; United States v. Bennett, 415 F. 2d 1113.)
Relating all this to the situation under review, at the time of his arrest, at the police station, the defendant was a known criminal, for whom there was a warrant. The proposition that contemporaneously with the arrest of a wanted criminal, at a police station, the police cannot search him or his car, is contrary to sound reason.
Finding no merit to the other grounds urged as a basis for reversal, we would affirm.