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People v. Montero

149 A.D.2d 628 Court N.Y. App. Div. Decision date 1989-04-17 English

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p. 628
The People of the State of New York, Appellant, v Carlos Montero, Respondent.

— Appeal by the People from an order of the Supreme Court, Queens County (Clabby, J.), dated July 7, 1988, which, after a hearing, granted that branch of the defendant’s omnibus motion which was to suppress physical evidence recovered from his person.

Ordered that the order is affirmed.

We agree with the hearing court’s conclusion that any reasonable fear on the part of the police for their safety abated once a protective frisk of the defendant revealed a single bulge which neither looked nor felt like any identifiable weapon and which the searching officer believed to be plastic bags of narcotics which were stacked atop one another in the

p. 629
defendant’s jacket pocket. Once the reasonable fear for safety abated, the police officer was required to discontinue his search, and his subsequent seizure of contraband from the defendant’s pocket was therefore improper (see, People v Roth, 66 NY2d 688 ; People v Vullis, 131 AD2d 616 ; People v Johnson, 130 AD2d 685 ; People v Robinson, 123 AD2d 796 ; People v McGriff, 99 AD2d 818 ).

We do not consider the People’s remaining contention, as it was neither advanced before nor considered by the hearing court (see, People v Johnson, 64 NY2d 617 , 619 n 2; People v Dodt, 61 NY2d 408 , 416). Rubin, J. P., Kooper, Sullivan and Balletta, JJ., concur.

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