        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

49
KA 10-01766
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARIO BRACY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (KRISTI M. AHLSTROM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered May 21, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree, criminal possession of a weapon in the third
degree and unlawful possession of marihuana.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law and the facts by vacating the part
convicting defendant of unlawful possession of marihuana, granting the
omnibus motion insofar as it sought to suppress the marihuana found on
defendant’s person, and dismissing the third count of the indictment,
and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]), criminal possession of a
weapon in the third degree (§ 265.02 [3]) and unlawful possession of
marihuana (§ 221.05). After indictment, defendant moved, inter alia,
to suppress a loaded handgun and marihuana that were seized from his
person by a police officer. County Court denied the motion, and
defendant pleaded guilty to the indictment. Defendant’s sole
contention on appeal is that the court erred in denying that part of
his omnibus motion seeking to suppress the handgun and marihuana
seized from his person. We conclude that the court properly refused
to suppress the handgun that was seized from the pocket of defendant’s
pants, but we agree with defendant that the court should have
suppressed the marihuana seized from the waistband of his pants. We
therefore modify the judgment accordingly.

     We reject defendant’s initial contention that the arresting
officer violated his rights by approaching him and asking for
identification. According to the testimony presented by the People at
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                                                         KA 10-01766

the suppression hearing, when the officer approached defendant, he and
another man were standing in a street next to an occupied parked
vehicle in an area that the officer knew to be subject to violence.
Defendant and the other man were standing in the street in a manner
that forced any passing vehicles to drive around them, into the
opposing traffic lane. Thus, “[t]he testimony at the suppression
hearing establishes that the police officer[] had an objective,
credible reason for initially approaching defendant and requesting
information from him” (People v Hill, 302 AD2d 958, 959, lv denied 100
NY2d 539; see generally People v Hollman, 79 NY2d 181, 190-193; People
v De Bour, 40 NY2d 210, 213).

      Contrary to defendant’s further contention, the evidence
presented at the suppression hearing establishes that the arresting
officer had reasonable suspicion to believe that defendant posed a
threat to her safety at the time of the frisk. When the officer first
asked if the four men present, i.e., defendant, the other man outside
the car, and two additional men inside the car, had identification,
the only person who responded was the person in the driver’s seat of
the car, and his response was merely that he was not driving. The
officer exited her vehicle, stood next to defendant and the other man
outside the car, and again asked if the four men had identification.
This time no one spoke, but both defendant and the other man quickly
reached toward their pockets or the waistbands of their pants. In
addition, both men were wearing long hooded jackets that covered their
pants below the pockets, and as previously noted the officer was aware
that the area in which the incident occurred was subject to violence.
The officer was thus confronted by two men in proximity to her, both
of whom were reaching for their pockets or the waistbands of their
pants. The officer grabbed the sweatshirts of both men, placed one
man in her vehicle, and frisked defendant. The officer therefore was
justified in lifting defendant’s sweatshirt to check for weapons, and
in patting down the outside of defendant’s clothing. While doing so,
the officer felt a hard object that she concluded was a handgun, which
led to the seizure of the loaded firearm from defendant’s pocket.
Based on that evidence, we conclude that the frisk of defendant was a
“constitutionally justified intrusion designed to protect the safety
of the officer[]” (People v Robinson, 278 AD2d 808, 809, lv denied 96
NY2d 787; see People v Mack, 49 AD3d 1291, 1292, lv denied 10 NY3d
866).

     We note that, although the men may have been reaching for their
identification papers in response to the officer’s inquiry, the
officer “had a reasonable basis for fearing for [her] safety and was
not required to ‘await the glint of steel’ ” (People v Stokes, 262
AD2d 975, 976, lv denied 93 NY2d 1028, quoting People v Benjamin, 51
NY2d 267, 271). Moreover, given that the police officer touched a
bulging pocket and felt a hard object that she reasonably feared to be
a weapon, the officer did not act unlawfully in reaching into the
pocket and removing the object (see People v Davenport, 9 AD3d 316, lv
denied 3 NY3d 705).

     We agree with defendant, however, that the court erred in
refusing to suppress the bag of marihuana that the officer removed
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                                                         KA 10-01766

from his waistband. The information that the officer possessed when
she seized the bag justified only a limited pat frisk to protect her
safety. Indeed, “ ‘[t]he purpose of this limited search is not to
discover evidence of crime, but to allow the officer to pursue his [or
her] investigation without fear of violence’ ” (Minnesota v Dickerson,
508 US 366, 373). “Rather, a protective search—permitted without a
warrant and on the basis of reasonable suspicion less than probable
cause—must be strictly ‘limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others
nearby’ ” (id.; see People v Cantor, 36 NY2d 106, 110-111; People v
Lazcano, 66 AD3d 1474, lv denied 13 NY3d 940). Here, to the contrary,
the officer testified that she observed the bag when she lifted
defendant’s sweatshirt, and she thought that it was a kit used to test
for marihuana. Thus, the officer exceeded the permitted scope of the
search by removing the bag from the suspect’s waistband to identify
its contents (see People v Dobson, 41 AD3d 496, 497, lv denied 9 NY3d
874). The court’s finding that the officer knew that the bag
contained marihuana before she removed it from defendant’s waistband
is not supported by the evidence at the suppression hearing, including
the testimony of the officer herself.

     Finally, insofar as defendant contends that the improper seizure
of the marihuana requires suppression of the handgun, we reject that
contention. The evidence presented at the suppression hearing
establishes, and the court properly concluded, that the officer found
the handgun as part of a pat frisk that she conducted for her safety.
Finding the bag of marihuana before discovering the handgun neither
eliminated nor diminished the safety factors confronting her. Thus,
she was permitted to continue frisking defendant’s clothing, which is
when she discovered the weapon.




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
