People v. Byrd

Apr 29, 2003
Versions:304 A.D.2d 490
761 N.Y.S.2d 155
2003 N.Y. App. Div. LEXIS 4492

Judgment, Supreme Court, New York County (Martin Rettinger, J., at hearing; William Wetzel, J., at plea and sentence), rendered July 19, 2000, convicting defendant of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of six years to life, unanimously affirmed.

Defendant’s suppression motion was properly denied. The presence of a weapon was strongly suggested by a large bulge in defendant’s waistband area, coupled with the fact that defendant was walking with his hand in his waistband over the bulge (see People v Arps, 293 AD2d 260 [2002], lv denied 98 NY2d 648 [2002]). Contrary to defendant’s argument, the officer’s testimony clearly established that the bulge was in defendant’s waistband. When defendant, who reasonably appeared to have recognized the police despite their unmarked vehicle and civilian attire (see People v Randolph, 278 AD2d 52 [2000], lv denied 96 NY2d 762 [2001]), suddenly fled, keeping his hand in its suspicious position as the police merely got out of their car, pursuit was justified, and the recovery of the cocaine defendant abandoned in flight was not the product of any unlawful police activity. Concur — Buckley, P.J., Mazzarelli, Ellerin, Williams and Gonzalez, JJ.