Opinion
March 27, 1990
Appeal from the Supreme Court, New York County, Joan Carey, J.
We find no merit to defendant's claim that his motion to suppress a gun should have been granted. Defendant was approached as he left a commercial building by two officers who were responding to a report of a burglary at the location. He voluntarily accompanied the officers into the building to verify his claim that he was a messenger who had just made a delivery. Once inside, however, two women informed the police that they did not recognize him, and another woman from the building told them that she had instructed defendant to leave because he had no business in the building. At that point, one of the officers patted the pouch that was hanging from defendant's shoulder and in which he had observed a bulge. Feeling a hard object which he believed was the handle of a gun, the officer asked defendant what it was, and a struggle ensued as defendant attempted to flee.
In light of the circumstances, the officer's minimal intrusion in touching the pouch was permissible. (People v De Bour, 40 N.Y.2d 210, 223; People v Mack, 26 N.Y.2d 311, 317, cert denied 400 U.S. 960; People v Paige, 154 A.D.2d 318.) The burglary report, the timing of the encounter on the street, and the witnesses' remarks rendered the officers' apprehension of danger reasonable, particularly in view of the defendant's unconfirmed story and the observation of a bulge in his pouch.
Nor is there merit to defendant's claim that he was denied a fair trial because of the introduction of the remark regarding defendant's having no business in the building. The court's curative instruction adequately served to advise the jury that this evidence was not being introduced as proof of an uncharged crime. Moreover, any error in the introduction of the evidence or the court's instruction may be deemed harmless; defendant's guilt as to each of the robberies was established by overwhelming evidence. (People v Crimmins, 36 N.Y.2d 230, 237.)
Defendant's remaining contentions, that the prosecutor improperly vouched for the credibility of the witnesses and mischaracterized the identification issue on summation, have not been preserved for appellate review as a matter of law. (CPL 470.05.) Were we to reach them in the interest of justice, we would find them to be without merit.
Concur — Kupferman, J.P., Ross, Kassal, Smith and Rubin, JJ.