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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Appellant, v. Otis THOMAS, Defendant-Respondent.

Decided: February 25, 1999

WILLIAMS, J.P., LERNER, RUBIN and SAXE, JJ. Stanley R. Kaplan, for Appellant. Bonnie B. Goldburg, for Defendant-Respondent.

Order, Supreme Court, Bronx County (Caesar Cirigliano, J.), entered June 15, 1998, which granted defendant's motion to suppress physical evidence, unanimously reversed, on the law, the motion denied, and the matter remanded to Supreme Court for further proceedings.

At a Mapp/Dunaway hearing, the arresting officer testified that he and his partner were assigned to routine vehicle patrol during the early morning hours of August 15, 1997.   As they passed the corner of East 168th Street and Morris Avenue, the officer became aware that he had seen defendant at that location “for most of the night, the man is six-four, 240 pounds so he kind of sticks out in a crowd.   I also noticed that I never seen him there before.”   The officer said that there was only one other person on the street and that there were no open businesses and no entrances to apartment buildings in the vicinity.   He described the area as “a drug-prone location”, adding that in the three years he had been patrolling the area, he had personally made 15 to 20 arrests and had witnessed “[a]t least 30” more at that location.

At about 5:20 a.m., the officers stopped and exited their vehicle.   They called defendant over to them and asked his name, what he was doing there and where he lived.   Defendant replied that he lived “up the block” and that he was just “hanging out”.   The officer testified that he and his partner engaged defendant in a conversation of three to five minutes in duration.   Defendant expressed an interest “in entering the military and he said he had to get legal matters cleaned up before he went in.”   At the end of the conversation, which was at all times cordial, the officer informed defendant that he was in a drug-prone location and that he should “go home before, you know, you get yourself caught up in something”, to which defendant responded that he had “no problem”.   As the officer backed away from defendant, he noticed “a bulge in his waistband * * * and I said what's this and I tapped it with the back of my hand and at that time I realized it was a gun”.   Defendant was then arrested and placed in handcuffs.

Upon further questioning, the officer stated that he did not know exactly what object produced the bulge at defendant's waist, only that it “was a little bit higher than the waistband, and it stuck out, it didn't appear to be a natural bulge or something attached to the body.”   The officer further denied that defendant had made any hostile moves and stated that, throughout the conversation, he stood two feet in front of defendant while his partner stood directly behind defendant.

Before the hearing court, defendant did not contest the officers' approach to request information, and he conceded their right to make a common-law inquiry upon observing the bulge at his waistband (People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).  “The location of the bulge is noteworthy because unlike a pocket bulge which could be caused by any number of innocuous objects, a waistband bulge is telltale of a weapon” (loc. cit., at 221, 386 N.Y.S.2d 375, 352 N.E.2d 562).   Given the late hour and defendant's unexplained presence on a lonely street in an area known for the sale of illicit drugs, the police officer acted out of justifiable apprehension in ascertaining the nature of the bulge at defendant's waistline (id.).  Viewed in the totality of the circumstances, the minimal intrusion involved did not unnecessarily interfere with individual privacy and freedom of movement and was therefore reasonable (id.;   see also, People v. Smith, 252 A.D.2d 352, 675 N.Y.S.2d 70, lv. denied 92 N.Y.2d 931, 680 N.Y.S.2d 472, 703 N.E.2d 284;  People v. Mathis, 167 A.D.2d 221, 222, lv. denied 77 N.Y.2d 963, 570 N.Y.S.2d 497, 573 N.E.2d 585).


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