| People v Rodriguez |
| 2010 NY Slip Op 01735 [71 AD3d 436] |
| March 4, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Francisco Rodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene Goldberg, J., at suppression hearing,Gregory Carro, J., at plea and sentence), rendered April 23, 2008, convicting defendant ofcriminal possession of a weapon in the second degree, and sentencing him, as a second felonyoffender, to a term of nine years, unanimously affirmed.
The court properly denied defendant's suppression motion. While conducting surveillance ofa sixth floor apartment known to be a distribution point for drugs and firearms, the arrestingofficer observed defendant stealthily approach from the floor below, silently directing hiscompanion's movements and carrying a latex glove. The officer knew such gloves had been usedin home invasion robberies, and believed the apartment under surveillance to be a potentialtarget for a robbery. The officer observed that the right side of defendant's waistband appeared tobe weighed down by a concealed object (see People v Benjamin, 51 NY2d 267, 271[1980] ["it may almost be considered common knowledge, that a handgun is often carried in thewaistband"]), and watched as defendant readjusted his pants several times. Upon seeing theofficer, defendant turned sharply, positioned his body in an unmistakable effort to conceal theobject in his waistband (see People v Flores, 226 AD2d 181 [1996], lv denied 88NY2d 985 [1996] [effort to conceal bulge heightened suspicion]), and then retreated. Each ofthese circumstances, when viewed in isolation, might be considered innocuous, but when viewedin totality they provided reasonable suspicion of criminality that justified the officer's actions indetaining defendant and removing a revolver from his waistband (see Benjamin, 51NY2d at 271). Finally, defendant's statement at the scene was not the product of custodialinterrogation requiring Miranda warnings (see People v Johnson, 59 NY2d 1014[1983]; People v Huffman, 41 NY2d 29, 33 [1976]; see also People v [*2]Bennett, 70 NY2d 891 [1987]).
We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Nardelli,Catterson, DeGrasse and Manzanet-Daniels, JJ.