October 9, 2013
The People of the State of New York, respondent,
Roberto Velasquez, appellant. Ind. No. 3238/10
Epstein & Conroy, Brooklyn, N.Y. (David B. Epstein of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, JEFFREY A. COHEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 19, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The defendant's motion to suppress physical evidence was properly denied, based on the plain view doctrine, which "rests on the premise that police should be able to seize incriminating evidence in plain view if they had the right to be where they were when they saw it. [L]aw enforcement officers may properly seize an item in plain view' without a warrant if (i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent" (People v Brown, 96 N.Y.2d 80, 88-89; see People v Diaz, 81 N.Y.2d 106, 110; see also Horton v California, 496 U.S. 128, 136-137).
Here, the first two criteria were satisfied by the hearing court's factual finding, which is supported by the record, that the defendant's wife consented to the entry by a parole officer and two police officers into the defendant's home and to the opening of a bedroom closet in that home (see People v Gomez, 204 A.D.2d 656, 657). With respect to the third criterion, the seizure of a distinctive Smith & Wesson gun box, which was recognized as such by the officers, was justified by the immediately apparent incriminating nature of the box, thus giving the officers probable cause to believe that it contained contraband (see Texas v Brown, 460 U.S. 730, 741; United States v Davis, 690 F.3d 226, 235 [4th Cir]).
Moreover, we reject the defendant's argument that he was improperly charged with the class C felony of criminal possession of a weapon in the second degree, because he possessed the loaded firearm in his home. "Where a defendant has been previously convicted of any crime, the possession of a loaded firearm is, per se, a class C felony [ criminal possession a weapon in the second degree, ' Penal Law § 265.03(3)], regardless of whether the possessor possessed the firearm in his or her home or place of business' (see Penal Law §§ 265.01; 265.02 and ). There is no exception'" to this rule (People v Sams, 19 Misc.3d 1133 [A], *1; 2008 NY Slip Op 50993[U], *2-3 [Sup Ct, NY County]; see People v Jones, 103 A.D.3d 411, 412; People v Hughes, 83 A.D.3d 960, 961, lv granted 19 N.Y.3d 961).
RIVERA, J.P., BALKIN, LEVENTHAL and COHEN, JJ., concur.