| People v Wilson |
| 2008 NY Slip Op 03909 [50 AD3d 1609] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Adrian L.Wilson, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedFebruary 7, 2007. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree, criminal possession of a controlledsubstance in the fifth degree and menacing in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]). County Court properly refused to suppress the drugs found protruding from the keypocket of defendant's jeans. Contrary to defendant's contention, the record of the suppressionhearing establishes that the police officer who found the drugs had information that wassufficient to provide the officer with a "founded suspicion that criminality was afoot" (Peoplev Hollman, 79 NY2d 181, 188 [1992]), including information from a police radio dispatch ofa disturbance involving two suspects, one of whom may have had a weapon. Upon arriving at thescene, the officer noted that defendant matched the description of a man seen nearby the previousday with a handgun. The evidence adduced at the suppression hearing thus establishes that theofficer had a reasonable suspicion that defendant and the two other men who were at thespecified location might be armed (see generally People v Benjamin, 51 NY2d 267, 271[1980]; People v Robinson, 278 AD2d 808, 809 [2000], lv denied 96 NY2d 787[2001]; People v Stokes, 262 AD2d 975, 976 [1999], lv denied 93 NY2d 1028[1999]). Contrary to defendant's further contention, the officer did not conduct a full-blownsearch by lifting defendant's heavy leather jacket to ascertain whether defendant had a weapon inhis waistband. Rather, the officer's limited protective frisk for weapons "was reasonable based onthe bulkiness of that garment and the officer's inability to determine whether a weapon was beingconcealed" (People v Muniz, 12AD3d 937, 939 [2004]; see alsoPeople v Moyaho, 12 AD3d 692 [2004], lv denied 4 NY3d 766 [2005];People v Hampton, 197 AD2d 365 [1993], lv denied 82 NY2d 925 [1994]). "Itwould, indeed, be absurd to suggest that a police officer has to await the glint of steel before hecan act to preserve his safety. Considering the totality of the circumstances, including the radiocall and the information acquired by observation at the scene, there was an ample measure ofreasonable suspicion necessary to justify the limited intrusion which produced the [drugsprotruding from defendant's pocket]" (Benjamin, 51 NY2d at 271).[*2]
We have considered defendant's remaining contentionsand conclude that they are without merit. Present—Hurlbutt, J.P., Smith, Fahey, Green andPine, JJ.