People v. Bethea

239 A.D.2d 510, 658 N.Y.S.2d 361, 1997 N.Y. App. Div. LEXIS 5350

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 1997
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lebowitz, J.), rendered May 21, 1996, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence and oral statements made by him to law enforcement authorities.

Ordered that the judgment is affirmed.

We find no basis for disturbing the hearing court’s decision to credit the arresting officer’s testimony that he initially approached the defendant because of his resemblance to an individual portrayed in a police department wanted poster (see, People v Prochilo, 41 NY2d 759, 761). The officer had, at the very least, the right to approach the defendant to request information (see, People v Hollman, 79 NY2d 181; People v Jacob, 202 AD2d 444). The defendant’s resemblance to a suspect in a homicide, his nervous behavior, and his act in reaching to his stomach justified the officer’s decision to remove the defendant’s hands from his stomach and pat the stomach area (see, People v Benjamin, 51 NY2d 267, 271; People v Taveras, 207 AD2d 306; People v Rodriguez, 177 AD2d 521). The weapon in the defendant’s waistband was therefore properly seized, and there is no basis to suppress the defendant’s spontaneous statements to the police. Rosenblatt, J. P., Thompson, Pizzuto and Friedmann, JJ., concur.