People v Correa

People v Correa 2010 NY Slip Op 07588 [77 AD3d 555] October 26, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent,
v
Thomas Correa, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J., at suppression hearing; James A. Yates, J., at plea and sentence), rendered December 4, 2008, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of six years, unanimously affirmed.

The court properly denied defendant's suppression motion. Police investigating a possible narcotics transaction in an apartment building had an objective, credible reason to make a common-law inquiry of defendant. The officers were in the stairwell of a crime-ridden location when defendant descended the stairs, made eye contact with one of the officers, grabbed at a large bulge in his pocket, and turned to walk back up the stairs (see e.g. People v Flores, 226 AD2d 181 [1996], lv denied 88 NY2d 985 [1996]). The record fails to support defendant's assertion that the police saw the bulge only after they had already made a level-two inquiry, or his characterization of the police action in following him up a stairway as "pursuit." Instead, the police did no more than "follow defendant while attempting to engage him," which is within the scope of a level-two inquiry (People v Moore, 6 NY3d 496, 500 [2006]). When defendant engaged in additional suspicious conduct regarding the bulge in the pocket, the officers were justified in taking self-protective measures by removing him from the stairwell into the hallway and patting down the bulge, which led to the discovery of a firearm. Concur—Tom, J.P., Saxe, Catterson, Renwick and DeGrasse, JJ.