People v. Rasberry

Appellate Division of the Supreme Court of New York

People v. Rasberry

172 A.D.2d 293, 568 N.Y.S.2d 105, 1991 N.Y. App. Div. LEXIS 4744

Appellate Division of the Supreme Court of the State of New York·Decided April 16, 1991·Published·Cited by 4 cases

Opinion

Judgment, Supreme Court, New York County (Allen Myers, J.), at Mapp hearing and plea), rendered April 16, 1987, convicting defendant on his plea of guilty of attempted criminal possession of a weapon in the third degree, and sentencing him to 6 months incarceration and 4 Vi years probation, unanimously affirmed.

Defendant and three or four other men were observed, at 3:30 a.m., congregated in the lobby of a building known for a high incidence of criminal activity. When the police inquired if defendant was a resident of the building, he did not respond, and avoided eye contact with the officers. At that point, one of the officers observed a suspicious bulge in defendant’s waistband, which he ascertained was a hard object by brushing the bulge with the back of his hand. (See, People v Mathis, 167 AD2d 221.) Defendant then attempted to flee, but was immediately stopped, and found to be in possession of a .22 calibre revolver.

Defendant’s motion to suppress the gun was properly denied. The initial approach of the police officers constituted a minimal intrusion, and was an exercise of their common law right to inquire (People v De Bour, 40 NY2d 210). The ensuing patdown and search were warranted by the telltale waistband bulge, defendant’s evasiveness, the late hour, and the nature of the location (People v Merete, 171 AD2d 437). Concur— Rosenberger, J. P., Kupferman, Kassal and Rubin, JJ.

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Judgment, Supreme Court, New York County (Allen Myers, J.), at Mapp hearing and plea), rendered April 16, 1987, convicting defendant on his plea of guilty of attempted criminal possession of a weapon in the third degree, and sentencing him to 6 months incarceration and 4 Vi years probation, unanimously affirmed.

Defendant and three or four other men were observed, at 3:30 a.m., congregated in the lobby of a building known for a high incidence of criminal activity. When the police inquired if defendant was a resident of the building, he did not respond, and avoided eye contact with the officers. At that point, one of the officers observed a suspicious bulge in defendant’s waistband, which he ascertained was a hard object by brushing the bulge with the back of his hand. (See, People v Mathis, 167 AD2d 221.) Defendant then attempted to flee, but was immediately stopped, and found to be in possession of a .22 calibre revolver.

Defendant’s motion to suppress the gun was properly denied. The initial approach of the police officers constituted a minimal intrusion, and was an exercise of their common law right to inquire (People v De Bour, 40 NY2d 210). The ensuing patdown and search were warranted by the telltale waistband bulge, defendant’s evasiveness, the late hour, and the nature of the location (People v Merete, 171 AD2d 437). Concur— Rosenberger, J. P., Kupferman, Kassal and Rubin, JJ.

People v. Rasberry, 172 A.D.2d 293, 568 N.Y.S.2d 105, 1991 N.Y. App. Div. LEXIS 4744 (N.Y. Ct. App. 1991).

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