PEOPLE v. SMITH (1999)

Judgment, Supreme Court, New York County (George Daniels, J.), rendered February 23, 1998, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of 8 years to life, unanimously affirmed.

 Defendant's suppression motion was properly denied.   When the police observed defendant engaging in suspicious behavior, including adjustment of his waistband, in a drug prone location, and observed a large bulge with the shape of a weapon in his waistband (see, People v. DeBour, 40 N.Y.2d 210, 221, 386 N.Y.S.2d 375, 352 N.E.2d 562), they at least had a founded suspicion of criminality justifying a common-law inquiry.   After they approached and got a better look at the bulge, they were convinced that it had the configuration of a machine pistol or large semiautomatic pistol (see, People v. Prochilo, 41 N.Y.2d 759, 762, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   Moreover, defendant refused to cooperate and reached toward his waistband (see, People v. Benjamin, 51 N.Y.2d 267, 434 N.Y.S.2d 144, 414 N.E.2d 645).   These factors amply provided reasonable suspicion, and at the very least permitted the police to touch the bulge (see, People v. Moret, 240 A.D.2d 321, 659 N.Y.S.2d 445, lv. denied 90 N.Y.2d 908, 663 N.Y.S.2d 520, 686 N.E.2d 232).   The large brick of cocaine was only exposed during defendant's struggle with the officers which provided probable cause to arrest defendant and to seize what was apparently contraband.   Accordingly, the physical evidence and statements were not fruits of an unlawful seizure.

MEMORANDUM DECISION.