PEOPLE v. RUIZ (2001)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered May 13, 1999, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Silverman, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the police had reasonable suspicion to believe he was involved in a gunpoint robbery and was armed with the gun used in that robbery (see, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889).   The defendant was not frisked merely because he was in the company of a person the police reasonably suspected was involved in a crime (cf., People v. Terrell, 185 A.D.2d 906, 587 N.Y.S.2d 8;  People v. Durant, 175 A.D.2d 176, 572 N.Y.S.2d 64;  People v. Trapier, 47 A.D.2d 481, 367 N.Y.S.2d 276).   The defendant was frisked because he was part of a group of three people who were walking four or five blocks from the scene of a gunpoint robbery at 2:00 A.M., were the only people on the street in this residential neighborhood, and generally matched the description of the three armed robbers (see, People v. Salaman, 71 N.Y.2d 869, 527 N.Y.S.2d 750, 522 N.E.2d 1048;  People v. Allen, 280 A.D.2d 270, 720 N.Y.S.2d 72;  People v. Andrews, 243 A.D.2d 321, 663 N.Y.S.2d 530;  People v. Jenkins, 87 A.D.2d 526, 448 N.Y.S.2d 9;  People v. Boyd, 78 A.D.2d 225, 434 N.Y.S.2d 221).

The comments made by the Trial Judge at sentencing clearly indicate that he did not improperly enhance the defendant's sentence based on his choice to go to trial (cf., Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604;  People v. Accolla, 124 A.D.2d 663, 508 N.Y.S.2d 43;  People v. Patterson, 106 A.D.2d 520, 483 N.Y.S.2d 55).   Additionally, the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).