PEOPLE v. NICHOLS (1998)

Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered August 18, 1997, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a prison term of five years, unanimously affirmed.   The matter is remanded to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50(5).

Defendant's suppression motion was properly denied.   The officer's direction to defendant to place his hands on the wall so she could conduct a limited pat down for weapons was prompted by more than just defendant's commission of a violation (compare, People v. St. Clair, 54 N.Y.2d 900, 444 N.Y.S.2d 919, 429 N.E.2d 426, affg. 80 A.D.2d 691, 436 N.Y.S.2d 904).   Rather, the combination of factors present here bring this case within the parameters of People v. King, 65 N.Y.2d 702, 703, 492 N.Y.S.2d 1, 481 N.E.2d 541, which permits a frisk following commission of a violation where the defendant exhibited “uncooperative and suspicious conduct”.

 Defendant was uncooperative, he refused to answer the officer's inquiries and his conduct was extremely suspicious.   Upon merely being detained for a simple violation, the agitation and nervousness he exhibited was so severe, involving uncontrollable shaking and trembling, that when combined with his failure to answer the officer's inquiry, the officer possessed a reasonable basis for believing that the defendant might be armed.   While nervous behavior does not alone provide grounds for a search in circumstances where the police merely suspect criminal activity such as drug trafficking (see, e.g., People v. Owens, 206 A.D.2d 303, 615 N.Y.S.2d 1;  People v. Boyd, 188 A.D.2d 239, 594 N.Y.S.2d 147), here defendant was already legitimately stopped for a violation (Administrative Code of City of N.Y. § 10-125), and the intrusion was limited to a weapons pat down.

 Defendant's admission of his possession of a weapon prior to the officer's conducting the intended pat down, and the officer's immediate retrieval of the weapon from his pocket, provided probable cause for his arrest.

MEMORANDUM DECISION.