People v. Nials

—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