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

The PEOPLE, etc., Respondent, v. Stacey JOHNSON, Appellant.

Decided: December 30, 2002

NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN and LEO F. McGINITY, JJ. Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for Appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Brian J. Michels of counsel), for Respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered March 1, 2001, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant arrived at John F. Kennedy International Airport on a flight from Trinidad.   He was selected by a United States Customs Inspector for a routine luggage inspection.   As he approached, the customs inspector noticed that the defendant walked gingerly, taking very short steps.   An inspection of the defendant's luggage yielded no contraband or suspicious items.   During questioning, however, the defendant appeared nervous, was sweating, did not look the inspector in the eye, and was evasive in his responses.   The defendant was then subjected to a pat-down search.   It was discovered upon an inspection of the defendant's shoes, which felt “unusually heavy,” that bags of cocaine were hidden inside the hollowed soles of his shoes.

Contrary to the defendant's contention, there was a legitimate basis for the pat-down search (see People v. Luna, 73 N.Y.2d 173, 179, 538 N.Y.S.2d 765, 535 N.E.2d 1305;  People v. Lovell, 233 A.D.2d 466, 649 N.Y.S.2d 796;  People v. Robinson, 163 A.D.2d 428, 558 N.Y.S.2d 143).   Accordingly, that branch of the defendant's omnibus motion which was to suppress the fruits of the search was properly denied.

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