| People v Nelson |
| 2009 NY Slip Op 08134 [67 AD3d 486] |
| November 12, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Willie Nelson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Yuval Simchi-Levi of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J., at hearing; James A.Yates, J., at plea and sentence), rendered January 8, 2009, convicting defendant, upon his plea ofguilty, of criminal possession of a controlled substance in the third degree, and sentencing him toa term of six years, unanimously affirmed.
The court properly denied defendant's suppression motion. Police officers lawfully stopped alivery cab on the basis of traffic violations. This entitled them to order defendant, a passenger,out of the cab even without any particularized suspicion (see Pennsylvania v Mimms,434 US 106, 111 [1977]; People v Robinson, 74 NY2d 773, 775 [1989], cert denied493 US 966 [1989]). Moreover, the police had an objectively reasonable suspicion thatdefendant was trying to conceal a weapon. As the officers approached the stopped cab, they sawdefendant, in the middle of the back seat, frantically and erratically moving around, leaningseveral times to the left and moving his arms up and down in a manner that seemed to indicatethat he was trying to tuck something under his arm. As the officers came closer, defendant thenseemed to move over to the right side of the rear seat. This conduct went far beyond ordinarynervous behavior.
When defendant came out of the cab, he pressed his body against the area of the rearpassenger door, facing the cab and pushing his waist area toward it. The officers never tolddefendant to stand against the cab; on the contrary, defendant refused the officers' directives tomove away from it. The testimony clearly establishes that defendant was not simply complyingin advance with an anticipated frisk, but was trying to hide something that was in his frontwaistband, away from the officers' view. In addition, defendant moved his hands downward,toward his waistband, a gesture strongly indicative of a threat to the officers' safety (seePeople v Benjamin, 51 NY2d 267, 271 [1980]). Regardless of at what point the officers firstcontemplated performing a pat-down search, the record establishes that defendant was not seizeduntil after he engaged in all of this suspicious behavior.
The totality of defendant's actions, both in and out of the cab, provided more than enoughreasonable suspicion to warrant a frisk (see People v Graham, 41 AD3d 119 [2007], lv denied 9NY3d 865 [2007]; see also People vAllen, 42 AD3d 331 [2007], lv denied 9 NY3d 971 [2007]; People v Hensen, 21 AD3d 172[2005], lv denied 5 NY3d 828 [2005]). During the frisk, an [*2]officer felt a hard object that he believed, based on his experience,to be the butt of the sawed-off stock of a shoulder weapon, but which ultimately turned out to bea hard package of drugs. The officer never testified that he felt what he believed to be the entireweapon, and we reject defendant's argument that the size of the object described by the officercalls his testimony into question. Since the officer reasonably believed the object to be a firearm,he was entitled to remove it (see e.g. People v Mims, 32 AD3d 800 [2006]).
We have considered and rejected defendant's remaining arguments.Concur—Gonzalez, P.J., Andrias, Saxe, Renwick and Manzanet-Daniels, JJ.