        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

95
KA 12-00870
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL ANTHONY HOLMES, DEFENDANT-RESPONDENT.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR APPELLANT.

PETER J. GLENNON, ROCHESTER, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Alex R.
Renzi, J.), dated March 26, 2012. The order granted the motion of
defendant to suppress evidence.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the motion to suppress the firearm is
denied and the matter is remitted to Supreme Court, Monroe County, for
further proceedings on the indictment.

     Memorandum: The People appeal from an order granting defendant’s
motion to suppress a handgun seized by the police during a search of
his motor vehicle. We agree with the People that Supreme Court erred
in granting the motion. The evidence adduced at the suppression
hearing established that an identified citizen called 911 and reported
that she witnessed a man being forced at gunpoint into a brown Ford
Explorer near the intersection of Brooks Avenue and Genesee Street in
the City of Rochester. A dispatch with that information was then
broadcast over the police radio. Within minutes of hearing the
dispatch, a police officer observed a brown Ford Explorer on Genesee
Street approximately one quarter of a mile from Brooks Avenue. The
officer further observed that the Ford Explorer was being followed by
a vehicle whose driver, later identified as the person who called 911,
was waving her hand outside the window and yelling, “That’s them,
that’s them,” while pointing at the Ford Explorer.

     The officer proceeded to stop the Ford Explorer and ordered its
three occupants out of the vehicle. Defendant was the driver, and it
was determined by another officer at the scene that his driver’s
license had been suspended. Defendant was therefore charged with
aggravated unlicensed operation of a motor vehicle in the second
degree, a misdemeanor, along with unlicensed operation of a motor
vehicle, a traffic infraction. At the scene, the woman who called 911
informed the police that the person who had been abducted was her
                                 -2-                            95
                                                         KA 12-00870

boyfriend, and that she had seen one of the other two occupants of the
Ford Explorer put what appeared to be a gun to her boyfriend’s head
and force him into the vehicle. The police decided to tow the
vehicle, and before doing so an officer searched the vehicle and found
a loaded firearm secreted near the center console in the front seat.
Defendant and his codefendant were charged with criminal possession of
a weapon in the second degree, and the codefendant also was charged
with kidnapping in the second degree.

     Following indictment, defendant moved to suppress the firearm
seized by the police, contending that the search of the vehicle was
unlawful. In their responding papers, the People argued that the
search was lawful because the police had probable cause to believe
that defendant had committed a crime. Following the hearing, defense
counsel did not dispute that the police lawfully stopped the vehicle
defendant was driving or that defendant was lawfully arrested.
Defense counsel argued, however, that the police conducted an unlawful
inventory search of the vehicle. The People responded that the search
was a lawful inventory search and that, in any event, it was supported
by probable cause to believe that defendant had committed a crime.
The court granted defendant’s motion and suppressed the firearm. We
now reverse.

     It is well settled that, “ ‘where police have validly arrested an
occupant of an automobile, and they have reason to believe that [it]
may contain evidence related to the crime for which the occupant was
arrested or that a weapon may be discovered or a means of escape
thwarted, they may contemporaneously search the passenger compartment,
including any containers found therein’ ” (People v Blasich, 73 NY2d
673, 678-679, quoting People v Belton, 55 NY2d 49, 55, rearg denied 56
NY2d 646 [emphasis added]; see People v Galak, 81 NY2d 463, 467).

     Here, as noted, there is no dispute that defendant was lawfully
stopped and arrested. Rather, the issue before us is whether the
police lawfully searched the vehicle defendant was driving. Even
assuming, without deciding, that the police did not conduct a lawful
inventory search, we conclude that a search was authorized because the
police had probable cause to believe that a gun was inside the
vehicle. Probable cause arose from the information provided to the
police by the identified citizen informant, who stated that she
observed one of the occupants of defendant’s vehicle in possession of
what appeared to be a handgun used in the abduction of her boyfriend.
“An identified citizen informant is presumed to be personally
reliable” (People v Parris, 83 NY2d 342, 350; see People v Van Every,
1 AD3d 977, 978, lv denied 1 NY3d 602) and, here, the informant had a
sufficient basis of knowledge inasmuch as she personally observed the
weapon in question (see generally People v Rodriguez, 52 NY2d 483,
491).



Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
