PEOPLE v. SOTO

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

The PEOPLE of the State of New York, Respondent, v. Leo SOTO, Defendant-Appellant.

Decided: November 16, 1999

WILLIAMS, J.P., MAZZARELLI, RUBIN, SAXE and BUCKLEY, JJ. Kenneth S. Levine, for Respondent. Kristina Schwarz, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered December 4, 1997, 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.

Defendant's suppression motion was properly denied.   Defendant was observed at 1:30 A.M. in a high crime area, with three other men, acting in a manner which raised the officer's suspicion that they were “casing” a bar for a robbery, in that two of the men entered the bar while one went to the window and peered inside in a manner that avoided being observed from inside the bar, whereupon defendant, who had crossed the street, recrossed and joined the man outside the bar.   Defendant had been walking with a suspicious gait that the officer recognized from his training and experience as indicating a hidden weapon, and he was clutching an object in his waistband.   The totality of these factors provided reasonable suspicion that defendant might be armed, and the officer was justified in reaching out to touch the object defendant was clutching (see, People v. Giles, 223 A.D.2d 39, 647 N.Y.S.2d 4, lv. denied 89 N.Y.2d 864, 653 N.Y.S.2d 287, 675 N.E.2d 1240, see also, People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645).  Accordingly, the sawed-off rifle concealed in defendant's pants was legally seized, and defendant's statement given thereafter was lawfully obtained.

MEMORANDUM DECISION.