| People v Feldman |
| 2014 NY Slip Op 01377 [114 AD3d 603] |
| February 27, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Elijah Feldman, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Karinna M. Rossi of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedOctober 20, 2010, convicting defendant, upon his plea of guilty, of attempted robbery inthe first degree, criminal possession of a weapon in the second degree (two counts),criminal impersonation in the first degree, unlawful wearing of a body vest, and unlawfuluse of a police uniform or emblem, and sentencing him, as a second violent felonyoffender, to an aggregate term of seven years, unanimously affirmed.
The court properly denied defendant's suppression motion. As an initial matter, thereis no basis for disturbing the court's credibility determinations, which are supported bythe record (see People v Prochilo, 41 NY2d 759, 761 [1977]). On appeal,defendant, who was a passenger in a car that was observed committing traffic infractions,does not challenge the police officers' right to stop and approach the car, nor does hecontest the propriety of the officer's direction that he get out of the car. Rather, hecontends that the officer was unjustified in frisking him because there was no reasonablesuspicion to believe that he was armed or had been or was about to be involved incriminal activity. Even though some of the circumstances, when viewed in isolation,might be considered innocuous, the totality of the information available to the policejustified the frisk of defendant (see e.g. People v Rodriguez, 71 AD3d 436 [2010], lvdenied 15 NY3d 756 [2010]). The police officer's earlier observation of defendant'sfurtive motions in attempting to stuff something under the passenger seat, and theofficer's confirmation, before the frisk, that something was protruding from under thepassenger seat, when considered in the context of the physical struggle the officerobserved transpiring between his partner and the driver, caused the officer to reasonablyfear for his safety and reasonably believe that defendant might possess a weapon (seePeople v Mundo, 99 NY2d 55, 59 [2002] [defendant appearing to place somethingunderneath his seat, in conjunction with other factors, supported finding that there was"an actual and specific danger" to the officer's safety]; see also People v Newman, 96AD3d 34 [1st Dept 2012], lv denied 19 NY3d 999 [2012]; People v Anderson, 17 AD3d166 [1st Dept 2005]). Thus, [*2]the protective friskof defendant that revealed that he was wearing a bulletproof vest was lawful, as were theensuing police actions, which led to the recovery of a firearm and other evidence.Concur—Tom, J.P., Acosta, Andrias, Freedman and Feinman, JJ.