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People v. Daniels

Appellate Division of the Supreme Court of New York, Second Department
Feb 22, 1993
190 A.D.2d 858 (N.Y. App. Div. 1993)

Opinion

February 22, 1993

Appeal from the Supreme Court, Kings County (Fertig, J.).


Ordered that the judgment is affirmed.

At approximately 10:40 P.M. on August 22, 1989, Police Officer Ismael Roman and his partner, both of whom were in uniform, received a radio transmission of a man with a gun, described as a "male black with a white T-shirt and a hat on backwards on Gates between Marcy and Nostrand Avenues". The radio transmission indicated that the information had come from an anonymous telephone call. It took the two officers only two minutes to respond to that location where they observed the defendant, who fit the description, walking on Gates toward Marcy Avenue. There was no one on the street other than the defendant. Officer Roman approached the defendant and asked where he was going. As he was doing so, Officer Roman noticed a bulge on the right side of the defendant's waistband, whereupon he patted down that specific area, felt the outline of a firearm, and removed a loaded .32 caliber automatic handgun. The defendant was arrested and transported to the station house where he admitted the gun was his after he waived his Miranda rights.

The defendant contends that Officer Roman's testimony was incredible and unworthy of belief and that it had all the earmarks of having been tailored to meet constitutional objections. However, it is well settled that "[t]he determination of the suppression court, with its advantages of having seen and heard the witnesses, must be accorded great weight, and its determination should not be disturbed if it is supported by the record (see, People v Prochilo, 41 N.Y.2d 759, 761; People v McAvoy, 142 A.D.2d 605)" (People v Tromp, 160 A.D.2d 750; see also, People v Davis, 166 A.D.2d 604; People v Rose, 159 A.D.2d 600; People v Garafolo, 44 A.D.2d 86). The record supports the hearing court's implicit determination that Officer Roman's testimony was credible (see, e.g., People v Moczo, 174 A.D.2d 365; People v Boyd, 156 A.D.2d 701; People v Rodriguez, 164 A.D.2d 824).

Moreover, under the circumstances, Officer Roman was entitled to approach the defendant for the purpose of exercising his common-law right to inquire (see, People v Stewart, 41 N.Y.2d 65, 69; People v Nicolas, 171 A.D.2d 817). In addition, once he observed the bulge in the defendant's waistband, Officer Roman could properly pat down that spot (see, People v De Bour, 40 N.Y.2d 210, 221; People v Restrepo, 173 A.D.2d 652; People v King, 165 A.D.2d 835). The recovery of the weapon, therefore, was proper and provided Officer Roman with probable cause to arrest the defendant (see, People v Lugo, 177 A.D.2d 427; People v Davis, 161 A.D.2d 602). Since the pat down and arrest of the defendant was proper, the hearing court properly refused to suppress the weapon. Further, the defendant's oral statements were not the product of an unlawful search and seizure. Mangano, P.J., Sullivan, Balletta and O'Brien, JJ., concur.


Summaries of

People v. Daniels

Appellate Division of the Supreme Court of New York, Second Department
Feb 22, 1993
190 A.D.2d 858 (N.Y. App. Div. 1993)
Case details for

People v. Daniels

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EUGENE DANIELS…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 22, 1993

Citations

190 A.D.2d 858 (N.Y. App. Div. 1993)
593 N.Y.S.2d 878

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