People v. Merete

171 A.D.2d 437, 567 N.Y.S.2d 22, 1991 N.Y. App. Div. LEXIS 2739

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1991
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Emily Goodman, J.), rendered May 15, 1989, convicting defendant, after a plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of two and one-half to five years, unanimously affirmed.

On August 2, 1988, the defendant was seen by one of the arresting officers with the clearly defined outline of a gun at his waistband. Both the officers testified as to the defendant’s unusual action in taking the towel from an ice cream vendor’s cart in an attempt to cover the gun outline under his shirt.

Where there is a defined bulge in the outline or configuration of a gun, a search pursuant to CPL 140.50 is proper. (People v Taveras, 155 AD2d 131, appeal dismissed 76 NY2d 871; People v Blackman, 61 AD2d 916.) The testimony at the suppression hearing raised credibility issues and upon this record we find no reason to interfere with the hearing court’s factual findings. Concur — Carro, J. P., Ellerin, Wallach, Kupferman and Kassal, JJ.