| People v Flemming |
| 2009 NY Slip Op 00860 [59 AD3d 1004] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RickyFlemming, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Oneida County (Barry M. Donalty, A.J.),rendered May 19, 2006. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon 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 ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]).Contrary to defendant's contention, Supreme Court properly refused to suppress evidence,including a handgun, seized by a police officer from defendant's person. After the vehicle inwhich defendant was a passenger was lawfully stopped for a traffic violation, defendant refusedto move his hands in accordance with the officer's instructions to do so, thereby threatening thesafety of the officer. The officer, who had been told by a fellow officer that defendant hadpreviously carried a handgun, also observed a bulge in defendant's waistband. "Considering thetotality of the circumstances . . . , there was an ample measure of reasonablesuspicion necessary to justify" the officer's limited frisk for weapons (People vBenjamin, 51 NY2d 267, 271 [1980]; see People v Robinson, 278 AD2d 808, 809[2000], lv denied 96 NY2d 787 [2001]; see generally People v Prochilo, 41NY2d 759, 761-762 [1977]). Contrary to defendant's further contention, "the five-year period ofpostrelease supervision is mandatory based on defendant's status as a second felony offender"(People v McQuiller, 19 AD3d1043, 1045 [2005], lv denied 5 NY3d 808 [2005]; see People v Ware, 28 AD3d1124, 1125 [2006], lv denied 7 NY3d 852 [2006]), and thus the sentence is notillegal. Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.