PEOPLE v. MARSH

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

The PEOPLE, etc., Respondent, v. Michael MARSH, Appellant.

Decided: December 24, 2001

ANITA R. FLORIO, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ. Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silverman, J.), rendered December 21, 1999, convicting him of robbery in the first degree and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Pincus, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence and identification testimony.

ORDERED that the judgment is affirmed.

 The defendant's contention that the hearing court erred in finding that the stop of the taxi in which he was a passenger was reasonable is unpreserved for appellate review (see, CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363).   In any event, the hearing court's determination was proper.   The taxi was stopped in the course of a police investigation of robberies of taxi drivers that had occurred over several days within a certain area of Brooklyn.   After being instructed at a task force meeting from a pattern sheet detailing the robberies, detectives were situated throughout the targeted area.   Only taxis fitting into the pattern of the prior robberies were stopped.   The taxi in which the defendant was a passenger fit into the pattern, in that it was a yellow taxi with a Pakistani or Indian driver carrying a black male speaking on a cellular telephone.   Contrary to the defendant's contention, this stop did not run afoul of the procedures for livery cab stops (see, Matter of Muhammad F., 94 N.Y.2d 136, 700 N.Y.S.2d 77, 722 N.E.2d 45, cert. denied 531 U.S. 1044, 121 S.Ct. 643, 148 L.Ed.2d 549).

 The hearing testimony further showed that, upon seeing the detectives approach the taxi, the defendant attempted to hide something at his side and to push past a detective, and then refused to put his hands on the taxi's trunk after several requests.   Accordingly, the frisk of the defendant was justified (see, People v. Wilson, 264 A.D.2d 862, 696 N.Y.S.2d 175).   Once he was found to be carrying a knife that appeared to be stained with dried blood, the police had probable cause to arrest him (see, People v. Wilson, supra).   Therefore, the Supreme Court correctly denied that branch of the defendant's omnibus motion which was to suppress physical evidence and identification testimony.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

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