People v. Williams — 217 A.D.2d 1007

Majority

p. 1007

The People of the State of New York, Appellant, v Eric Williams, Respondent.

[629 NYS2d 607]

—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

p. 1008

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.

Cases cited

People v. Galak 80 NY2d 715 N.Y. 1993-02-16 at 717 p. 1008
People v. Stith 69 NY2d 313 N.Y. 1987-03-26 at 320 p. 1008
People v. Fino 24 NY2d 1020 N.Y. 1969-05-28 p. 1008
People v. Diaz 81 NY2d 106 N.Y. 1993-04-08 p. 1008
People v. Roth 66 NY2d 688 N.Y. 1985-10-15 p. 1008
People v. Clark 213 AD2d 946 N.Y. App. Div. 1995-03-30 p. 1008
People v. Robinson 69 NY2d 1014 N.Y. 1987-06-02 p. 1008
Rawlings v. Kentucky 448 US 98 SCOTUS 1980-06-25 at 111 p. 1008
People v. Landy 59 NY2d 369 N.Y. 1983-06-30 p. 1008
People v. Evans 43 NY2d 160 N.Y. 1977-11-21 at 166 p. 1008