Majority
p. 522The People of the State of New York, Respondent, v Dario Reyes, Appellant. [595 NYS2d 57]
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered July 9, 1991, 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.
Ordered that the judgment is affirmed.
The defendant’s contention that the gun recovered from him
p. 523
should have been suppressed is without merit. The police officer was justified in removing the defendant’s hand from his pocket and thereby recovering the gun because the officer reasonably feared for his own safety and the safety of others (see, People v Benjamin, 51 NY2d 267 ). The defendant’s contention that he was entitled to a missing witness charge because the People failed to call the defendant’s opponent in the street fight which the officer was investigating when he recovered the gun, is also without merit, because the witness was not under the People’s control and was equally available to the defendant (see, People v Lammers, 184 AD2d 733 ).
We find that the defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80 ). Thompson, J. P., Sullivan, O’Brien and Copertino, JJ., concur.
Cases cited
- People v. Benjamin 51 NY2d 267 p. 523
- People v. Lammers 184 AD2d 733 p. 523
- People v. Suitte 90 AD2d 80 p. 523