People v. Perez

199 A.D.2d 427, 605 N.Y.S.2d 332

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feinberg, J.), rendered April 19, 1991, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Lipp, J.), of those branches of the defendant’s omnibus motion which were to suppress physical evidence and a statement made by him.

Ordered the the judgment is affirmed.

The hearing court properly determined that both the gun recovered from the defendant and the statement he made while in custody were admissible at trial. The record reveals that the police officer was justified in believing that the

defendant was armed and thus the subsequent frisk of the defendant for weapons was permissible (see, People v Rodriguez, 177 AD2d 521, 522). The statement which the defendant made, after he had invoked his right to remain silent, was completely spontaneous and thus admissible (see, People v Huffman, 61 NY2d 795, 797). Given the defendant’s status as a persistent violent felony offender, we cannot say that his sentence is excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Mangano, P. J., Balletta, Lawrence and O’Brien, JJ., concur.