People v. Herrar

120 A.D.2d 614, 502 N.Y.S.2d 85, 1986 N.Y. App. Div. LEXIS 56703

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1986
• Status: Published

Opinion

— Appeal by the. defendant from a judgment of the Supreme Court, Kings County (Hayes, J.), rendered April 15, 1983, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The police had a reasonable basis for stopping the defendant’s motorcycle since they had just observed him committing two traffic violations (see, People v Gooden, 111 AD2d 871). Upon approaching the defendant, two police officers observed him reaching toward his bulging jacket pocket. The officers were thus presented with a reasonable suspicion of danger so as to warrant the minimal intrusion of a frisk of the defendant (see, People v Benjamin, 51 NY2d 267). The subsequent seizure of the defendant’s gun was, therefore, proper.

Additionally, the defendant had previously been sentenced, on separate occasions, for two predicate violent felonies (see, Penal Law § 70.02). Therefore, even though he had never been sentenced as a second violent felony offender (see, Penal Law § 70.04), he was properly sentenced as a persistent violent felony offender (see, Penal Law § 70.08; People v Morse, 62 NY2d 205). Lazer, J. P., Bracken, Brown and Lawrence, JJ., concur.