People v. Maldonado

251 A.D.2d 48, 672 N.Y.S.2d 719, 1998 N.Y. App. Div. LEXIS 6412

Opinion

—Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered April 7, 1997, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him to a prison term of 3 months concurrent with 5 years probation, unanimously affirmed.

Defendant’s suppression motion was properly denied. The record supports the hearing court’s finding that the stop of defendant’s vehicle for an actual traffic violation was not pretextual. The frisk of the occupants was justified by their suspicious movements (see, People v Roth, 66 NY2d 688). The officer’s discovery of a gun in a passenger’s waistband created probable cause to search the area under another passenger’s seat, where the officer had seen that passenger attempt to place something (see, People v Ellis, 62 NY2d 393). Concur — Milonas, J. P., Wallach, Tom, Mazzarelli and Saxe, JJ.