PEOPLE v. WILSON

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

The PEOPLE, etc., respondent, v. Kamel WILSON, appellant.

Decided: September 27, 1999

SONDRA MILLER, J.P., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ. Andrew S. Worgan, Kew Gardens, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Alyson J. Gill, and George J. Farrugia of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered October 24, 1996, adjudicating him a youthful offender, upon a jury verdict finding him guilty of robbery in the first degree and robbery in the second degree (two counts), and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the court properly denied suppression of the physical evidence and identification testimony.   The evidence presented at the suppression hearing demonstrated that the police officer's stop of the defendant was supported by a reasonable suspicion that criminal activity was afoot (see, People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861;  People v. Cantor, 36 N.Y.2d 106, 112-113, 365 N.Y.S.2d 509, 324 N.E.2d 872).   The frisk of the defendant was justified by the police officer's observation of a bulge in the defendant's waistband having the outline of a gun (see, CPL 140.50[3];  People v. Saunders, 180 A.D.2d 542, 580 N.Y.S.2d 255).   Once the police officer recovered a pellet gun from the defendant, there was probable cause to arrest him (see, People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;  People v. Hollman, 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).

 The defendant's contention that the evidence was legally insufficient to prove his guilt of any of the crimes of which he was convicted is unpreserved for appellate review (see, CPL 470.05[2];  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

MEMORANDUM BY THE COURT.

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