People v. Henderson

Appellate Division of the Supreme Court of New York

People v. Henderson

85 A.D.3d 663, 925 N.Y.S.2d 827

Appellate Division of the Supreme Court of the State of New York·Decided June 28, 2011·Published·Cited by 6 cases

Opinion

Judgment, Supreme Court, New York County (Renee A. White, J., at hearing; Lewis Bart Stone, J., at plea and sentencing), rendered June 25, 2009, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.

The court properly denied defendant’s suppression motion. The police officers had a reasonable, objective basis for concluding that the object they saw in defendant’s waistband was a pistol. The officers saw a bulge, which they described in detail. Although the officers did not see the outline of an entire weapon, the shape of the bulge resembled the outline of the grip of a pistol. In addition, defendant made repeated motions that the officers recognized, from their experience, as typical of attempts to adjust a firearm kept in a waistband. Accordingly, the police had reasonable suspicion justifying a stop and frisk (see e.g. Matter of George G., 73 AD3d 624 [2010]; People v Quan, 182 AD2d 506 [1992], lv denied 80 NY2d 836 [1992]).

Defendant did not preserve his contention that the police officers, at most, should have initially conducted a patdown, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see People v Smith, [664] 93 AD2d 432, 434 [1983], lv denied 60 NY2d 594 [1983]). Concur — Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels and Román, JJ.

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Judgment, Supreme Court, New York County (Renee A. White, J., at hearing; Lewis Bart Stone, J., at plea and sentencing), rendered June 25, 2009, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.

The court properly denied defendant’s suppression motion. The police officers had a reasonable, objective basis for concluding that the object they saw in defendant’s waistband was a pistol. The officers saw a bulge, which they described in detail. Although the officers did not see the outline of an entire weapon, the shape of the bulge resembled the outline of the grip of a pistol. In addition, defendant made repeated motions that the officers recognized, from their experience, as typical of attempts to adjust a firearm kept in a waistband. Accordingly, the police had reasonable suspicion justifying a stop and frisk (see e.g. Matter of George G., 73 AD3d 624 [2010]; People v Quan, 182 AD2d 506 [1992], lv denied 80 NY2d 836 [1992]).

Defendant did not preserve his contention that the police officers, at most, should have initially conducted a patdown, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see People v Smith, [664] 93 AD2d 432, 434 [1983], lv denied 60 NY2d 594 [1983]). Concur — Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels and Román, JJ.

People v. Henderson, 85 A.D.3d 663, 925 N.Y.S.2d 827 (N.Y. Ct. App. 2011).

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