PEOPLE v. HERNANDEZ

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

The PEOPLE of the State of New York, Respondent, v. Richard HERNANDEZ, Defendant-Appellant.

Decided: October 28, 2004

BUCKLEY, P.J., MAZZARELLI, ANDRIAS, WILLIAMS, SWEENY, JJ. Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Madeleine Guilmain of counsel), for respondent.

Judgment, Supreme Court, New York County (Micki A. Scherer, J.), rendered September 10, 2003, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him to a term of 1 year, unanimously affirmed.

 The court properly denied defendant's suppression motion.   When, in an area known for drug activity, shootings and robberies, a detective observed and overheard a transaction in which a person was clearly in the process of selling drugs to defendant and another man, she was, at least, entitled to approach the three men to make a common-law inquiry.   When she instructed the seller not to move, defendant, who appeared to be either a prospective buyer or accompanying one, did not simply walk away.   Instead, the detective saw defendant make a sudden, stealthy movement to get behind her while she was confronting the seller.   Defendant's sinister maneuver had no apparent innocent purpose, and it caused the detective to reasonably fear for her safety.   Accordingly, there was reasonable suspicion of criminality warranting a forcible stop and detention of defendant and concomitant frisk to ensure the detective's safety (see People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645 [1980] ).