People v. Campbell

293 A.D.2d 396, 740 N.Y.S.2d 619, 2002 N.Y. App. Div. LEXIS 4081

Opinion

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered May 28, 1999, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of 21/2 to 5 years, unanimously affirmed.

Defendant’s suppression motion was properly denied. The record supports the court’s determination that, in the course of a valid traffic stop, defendant’s sudden placement of his hand behind his back was sufficiently suspicious to warrant the officer’s minimal intrusion (see, People v De Bour, 40 NY2d 210, 221; see also, People v Cruz, 43 NY2d 786) of placing his own hand on defendant’s back to prevent him from possibly drawing a weapon. When defendant turned away from the officer, the officer’s hand slipped down defendant’s back to the waistband area, resulting in the officer’s accidental feeling of a hard object that the officer recognized to be a pistol. The officer’s instinctive self-protective action was not a frisk, nor even an attempt to ascertain whether a weapon was present (see, People v Chin, 192 AD2d 413, lv denied 81 NY2d 1071). Concur—Mazzarelli, J.P., Saxe, Sullivan, Wallach and Lerner, JJ.