People v. McDonald

Appellate Division of the Supreme Court of the State of New York

May 28, 1996

Versions:227 A.D.2d 309

642 N.Y.S.2d 889

1996 N.Y. App. Div. LEXIS 6023

Judgment, Supreme Court, Bronx County (Irene Duffy, J., at suppression hearing; Frank Diaz, J., at trial and sentence), rendered August 24, 1993, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 31/2 to 7 years, unanimously affirmed.

Defendant’s motion to suppress was properly denied. The two officers had an objective credible reason to approach defendant for information when they heard gunfire and then immediately saw defendant, who was the only person on the street in the vicinity of where the shots had come from (People v Blackwell, 206 AD2d 300, appeal dismissed 85 NY2d 851; People v Tucker, 223 AD2d 424). Defendant’s actions in adjusting his waistband and, upon the officers’ approach, in backing away from them with fists clenched at his chest, justified the frisk (People v Benjamin, 51 NY2d 267, 271). Concur — Murphy, P. J., Sullivan, Wallach, Nardelli and Tom, JJ.