Opinion
2000-07010
Argued October 21, 2003.
November 17, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered June 28, 2000, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
James Layton Koenig, Brooklyn, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Cynthia Kean of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, NANCY E. SMITH, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied suppression of the gun recovered from him. The detective's limited pat-down search of the defendant was proper because he had a reasonable basis to fear for his physical safety ( see CPL 140.50; People v. Abdul-Hakim, 289 A.D.2d 587; People v. Bannister, 220 A.D.2d 520, 521; People v. DeJesus, 55 A.D.2d 196, 201). Moreover, the defendant did not demonstrate that he was denied the effective assistance of counsel due to his trial counsel's failure to move to reopen the suppression hearing ( see People v. Rivera, 71 N.Y.2d 705, 708-709; People v. Baldi, 54 N.Y.2d 137; People v. Walker, 282 A.D.2d 628; People v. Lam, 226 A.D.2d 554, 555; People v. McFadden, 118 A.D.2d 805).
Finally, the defendant did not preserve for appellate review his contention that the trial court improperly based his sentence on crimes of which he was acquitted ( see People v. Harrison, 82 N.Y.2d 693, 694). In any event, this contention is without merit, and the sentence imposed was not excessive ( see People v. Ferere, 294 A.D.2d 596, 597; People v. Hopper, 277 A.D.2d 171, 172; People v. Suitte, 90 A.D.2d 80; cf. People v. Ramsey, 288 A.D.2d 240, 241; People v. Innis, 288 A.D.2d 236; People v. Santiago, 277 A.D.2d 258, 259).
PRUDENTI, P.J., ALTMAN, SMITH and CRANE, JJ., concur.