PEOPLE v. MIMS

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

The PEOPLE of the State of New York, Respondent, v. Kevin MIMS, Defendant-Appellant.

Decided: September 28, 2006

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, NARDELLI, McGUIRE, JJ. Law Office of Jack Goldberg, New York (Donald J. Yannella of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J. at hearing;  Gregory Carro, J. at plea and sentence), rendered May 3, 2005, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

 The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   After observing a traffic infraction, the police made a lawful stop of the livery cab in which defendant was riding (see People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001];  People v. Irizarry, 282 A.D.2d 483, 730 N.Y.S.2d 111 [2001], lv. denied 97 N.Y.2d 705, 739 N.Y.S.2d 106, 765 N.E.2d 309 [2002] ).   After properly asking defendant to step out of the cab (see People v. Alvarez, 308 A.D.2d 184, 187, 764 N.Y.S.2d 42 [2003], lv. denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572 [2004] ), an officer noticed a large bulge in defendant's crotch area.   This observation, coupled with the officer's observation of defendant's furtive behavior when the cab was stopped, provided reasonable suspicion justifying a frisk (see People v. Williams, 287 A.D.2d 396, 732 N.Y.S.2d 338 [2001], lv. denied 97 N.Y.2d 734, 740 N.Y.S.2d 708, 767 N.E.2d 165 [2002];  People v. Duncan, 234 A.D.2d 8, 650 N.Y.S.2d 644 [1996];  compare People v. Taveras, 155 A.D.2d 131, 553 N.Y.S.2d 305 [1990], appeal dismissed 76 N.Y.2d 871, 560 N.Y.S.2d 984, 561 N.E.2d 884 [1990] ).   When the officer touched the bulge and felt a hard object that he reasonably believed could be a gun, he was entitled to reach into the crotch area and remove the object, which consisted of a package of drugs (see People v. Thompson, 232 A.D.2d 267, 648 N.Y.S.2d 548 [1996], lv. denied 89 N.Y.2d 947, 655 N.Y.S.2d 898, 678 N.E.2d 511 [1997] ).