People v. Williams

Jul 14, 1995
Versions:217 A.D.2d 1007
629 N.Y.S.2d 607
1995 N.Y. App. Div. LEXIS 8453

—Order unanimously affirmed and indictment dismissed. Memorandum: The People appeal from an order granting the motion of defendant to suppress physical evidence seized from his person during a pat-down frisk. The People contend that the search of defendant’s pants pocket was justified because the police reasonably suspected from the frisk that the object in defendant’s pocket was a weapon and that the search was conducted incidental to defendant’s arrest. Neither contention was raised before the suppression court, and thus, neither contention has been preserved for our review (see, CPL 470.05 [2]; People v Galak, 80 NY2d 715, 717, n; People v Stith, 69 NY2d 313, 320; People v Fino, 24 NY2d 1020). In any event, the evidence does not support either contention. The officer who conducted the frisk did not testify that he believed that the object, a hard ball containing 41 packets of cocaine, was a weapon. The suppression court determined that the object could not reasonably be considered to pose any danger to officer safety. Thus, a further search of defendant’s pocket was not justified (see, People v Diaz, 81 NY2d 106; People v Roth, 66 NY2d 688; People v Clark, 213 AD2d 946; People v Robinson, 125 AD2d 259, appeal dismissed 69 NY2d 1014). Further, the search cannot be justified on the theory that it was contemporaneous with an arrest of defendant for criminal possession of a weapon (cf., Rawlings v Kentucky, 448 US 98, 111; People v Landy, 59 NY2d 369; People v Evans, 43 NY2d 160, 166). The record of the suppression hearing is devoid of proof that defendant was arrested on a weapons charge. (Appeal from Order of Monroe County Court, Smith, J.—Suppress Evidence.) Present—Pine, J. P., Fallon, Callahan, Balio and Boehm, JJ.