People v. Wood

216 A.D.2d 5, 627 N.Y.S.2d 377, 1995 N.Y. App. Div. LEXIS 5885

Opinion

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered March 29, 1994, 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 1 year, unanimously affirmed. The matter is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

Defendant’s motion to' suppress evidence was properly denied. Defendant’s purchase of a holster in a 42nd Street "novelty shop” gave the police the right to make a common-law inquiry, and, while defendant’s nervous behavior was not sufficient by itself to permit further intrusion (People v Johnson, 54 NY2d 958), the added factor of defendant’s adjustments of some object in his waistband (compare, People v Taveras, 207 AD2d 306, lv denied 84 NY2d 940, with People v Marine, 142 AD2d 368) permitted the minimal intrusion of requesting defendant to open his jacket (People v De Bour, 40 NY2d 210, 221), whereupon defendant’s evasive and potentially menacing movements created reasonable suspicion of criminality and a threat to the officer’s safety, permitting the officer to reach for defendant’s waistband area where a pistol was discovered (People v Samuels, 50 NY2d 1035, cert denied 449 US 984). Concur—Rubin, J. P., Kupferman, Asch and Tom, JJ.