People v. Nials

Appellate Division of the Supreme Court of New York

People v. Nials

209 A.D.2d 324, 619 N.Y.S.2d 20, 1994 N.Y. App. Div. LEXIS 11606

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 22, 1994

StatusPublished

This text of 209 A.D.2d 324 (People v. Nials) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Nials, 209 A.D.2d 324, 619 N.Y.S.2d 20, 1994 N.Y. App. Div. LEXIS 11606 (N.Y. Ct. App. 1994).

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Opinion

—Judgment, Supreme Court, Bronx County (Vincent Vitale, J.), rendered February 3, 1993, convicting defendant, upon his plea of guilty of criminal possession of a weapon in the third and fourth degrees, and sentencing him to concurrent prison terms of 1 year, unanimously affirmed.

We reject defendant’s claim that the bag containing the gun was unlawfully seized and should not in any event have been opened without a search warrant. Evidence at the hearing was that the uniformed arresting officer responded to an early morning radio message of shots fired in an area where there had been a traffic accident a short time before; arriving at the scene, the officer, while still in his vehicle, received another radio message of a black male wearing black pants and a light or white colored sweatshirt having put a gun in the trunk of a black car; simultaneously, the officer observed defendant, who matched the description, opening the trunk of a black car; the officer, without drawing his gun, exited his vehicle, approached defendant, who held a black leather bag, told defendant not to open the trunk and asked to see the bag; and defendant then gave the bag to the officer who felt what seemed to be a gun inside, and, upon opening the bag, discovered a loaded automatic gun, whereupon, he arrested defen[325]*325dant. This evidence, credited by the hearing court, gave rise to a founded suspicion that criminality was afoot justifying a common-law right of inquiry (see, People v De Bour, 40 NY2d 210, 223) that the officer exercised when he asked defendant for the bag (see, People v Benjamin, 51 NY2d 267, 270-271). Furthermore, the report of shots fired, coupled with the fact the bag felt like it contained a gun, justified the officer’s limited intrusion of opening the bag in order to insure his safety (see, People v Benjamin, supra, at 271; People v De Bour, supra, at 225). Concur—Sullivan, J. P., Ellerin, Kupferman and Williams, JJ.

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—Judgment, Supreme Court, Bronx County (Vincent Vitale, J.), rendered February 3, 1993, convicting defendant, upon his plea of guilty of criminal possession of a weapon in the third and fourth degrees, and sentencing him to concurrent prison terms of 1 year, unanimously affirmed.

We reject defendant’s claim that the bag containing the gun was unlawfully seized and should not in any event have been opened without a search warrant. Evidence at the hearing was that the uniformed arresting officer responded to an early morning radio message of shots fired in an area where there had been a traffic accident a short time before; arriving at the scene, the officer, while still in his vehicle, received another radio message of a black male wearing black pants and a light or white colored sweatshirt having put a gun in the trunk of a black car; simultaneously, the officer observed defendant, who matched the description, opening the trunk of a black car; the officer, without drawing his gun, exited his vehicle, approached defendant, who held a black leather bag, told defendant not to open the trunk and asked to see the bag; and defendant then gave the bag to the officer who felt what seemed to be a gun inside, and, upon opening the bag, discovered a loaded automatic gun, whereupon, he arrested defen[325]*325dant. This evidence, credited by the hearing court, gave rise to a founded suspicion that criminality was afoot justifying a common-law right of inquiry (see, People v De Bour, 40 NY2d 210, 223) that the officer exercised when he asked defendant for the bag (see, People v Benjamin, 51 NY2d 267, 270-271). Furthermore, the report of shots fired, coupled with the fact the bag felt like it contained a gun, justified the officer’s limited intrusion of opening the bag in order to insure his safety (see, People v Benjamin, supra, at 271; People v De Bour, supra, at 225). Concur—Sullivan, J. P., Ellerin, Kupferman and Williams, JJ.

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Bluebook (online)

209 A.D.2d 324, 619 N.Y.S.2d 20, 1994 N.Y. App. Div. LEXIS 11606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nials-nyappdiv-1994.

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