Opinion
July 5, 1988
Appeal from the County Court, Nassau County (Samenga, J.).
Ordered that the judgment is affirmed.
The defendant contends that the hearing court erred in refusing to suppress certain physical evidence, including a defaced sawed-off shotgun. This contention is without merit. This weapon was seized in plain view from within the parked van in which the defendant was seated. The arresting officers approached this van which was parked on a public street approximately 1 1/2 blocks away from the scene of an armed robbery which they had been investigating at a gas station at approximately 3:00 A.M. on June 2, 1982, in a high-crime area of Hempstead. It had earlier been seen circling the block on which the gas station was situated and as police were responding to the gas station it was observed traveling away from that location. While this limited information at that time did not establish probable cause to arrest, it did nonetheless justify the officers' unintrusive request that the driver produce his license and registration (see, People v. De Bour, 40 N.Y.2d 210). The arresting officers' subsequent observation that the defendant was wearing an empty ankle holster, combined with the defendant's incredible denials that he possessed such a holster, justified the officer's more intrusive response of ordering the defendant to exit the van for a pat down (see, People v. Samuels, 50 N.Y.2d 1035, cert denied 449 U.S. 984). Upon the defendant's exit from the vehicle, the shotgun was observed in plain view through the open door. At that time probable cause existed to seize the shotgun and arrest the defendant (see, People v. Bennett, 70 N.Y.2d 891; People v. Brown, 116 A.D.2d 727).
Additionally the defendant's statements, specifically his denials that he possessed an ankle holster while the arresting officer was observing this very holster, were properly admitted in evidence. These statements were made at a time when the officer was merely requesting that the driver produce his license and registration and as such occurred in a noncustodial investigatory setting (see, People v. Morales, 65 N.Y.2d 997; Matter of Kwok T., 43 N.Y.2d 213).
We further note that there was legally sufficient evidence of the defendant's guilt based upon his presumed possession of the weapon in the van outside of which he was later arrested. The jury was instructed regarding the statutory permissive rebuttable presumption of possession in an automobile (Penal Law § 265.15) and properly accepted the inference that the defendant was in knowing possession of the shotgun (see, People v. Lemmons, 40 N.Y.2d 505; People v. Sanchez, 110 A.D.2d 665). Upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (see, CPL 470.15).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit (see, People v. Santiago, 52 N.Y.2d 865; People v. Fay, 85 A.D.2d 512; see also, People v. Palemon, 131 A.D.2d 513, lv denied 70 N.Y.2d 715). Mangano, J.P., Bracken, Brown and Kunzeman, JJ., concur.