PEOPLE v. MOYAHO

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

The PEOPLE, etc., respondent, v. Humberto MOYAHO, appellant.

Decided: November 29, 2004

GABRIEL M. KRAUSMAN, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, and STEVEN W. FISHER, JJ. Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Tina Loschiavo of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered April 15, 2003, convicting him of criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Cooperman, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

On May 5, 2002, a uniformed detective, who was watching people exit a park after a festival, observed the defendant wearing a heavy winter jacket on a warm spring day when most people in the park were wearing shorts and T-shirts.   The detective approached the defendant from behind, tapped him on the shoulder, and said “Excuse me.”   When the defendant turned his head and saw the uniformed detective, the defendant immediately reached with both hands for his waistband.   Fearing for his safety, the detective spun the defendant around.   When the defendant continued to reach for his waistband, the detective grabbed his right hand and lifted his shirt, whereupon he discovered a loaded and operable gun in the front of the defendant's waistband.

We agree with the hearing court that the gun was properly seized.   The detective's conduct in approaching the defendant, tapping him on the shoulder, and saying “Excuse me” was the type of minimal intrusion that need be justified only by some objective credible reason, not necessarily indicative of criminality (see People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;  see also People v. Reyes, 83 N.Y.2d 945, 615 N.Y.S.2d 316, 638 N.E.2d 961, cert. denied 513 U.S. 991, 115 S.Ct. 492, 130 L.Ed.2d 403;  People v. Jackson, 249 A.D.2d 327, 670 N.Y.S.2d 895).   Here, the defendant's incongruous wearing of a heavy winter coat on a warm spring day provided that reason (cf. People v. Fellows, 239 A.D.2d 181, 183, 657 N.Y.S.2d 624).   Moreover, as handguns are often carried in the waistband (see People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645), when the defendant reached with both hands to his waistband immediately upon seeing a uniformed officer, the detective was justified in turning him around and lifting his shirt to determine whether a weapon was present (see People v. Douglas, 309 A.D.2d 517, 764 N.Y.S.2d 702;  People v. Gladden, 267 A.D.2d 400, 701 N.Y.S.2d 437).   Thus, the record establishes that the detective's conduct was justified at its inception and reasonably related in scope and intensity to the circumstances of the encounter as it developed (see People v. McKnight, 245 A.D.2d 390, 666 N.Y.S.2d 449;  People v. Nelson, 222 A.D.2d 614, 636 N.Y.S.2d 637).

The defendant's contention that certain comments made by the prosecutor during summation constituted reversible error is unpreserved for appellate review (see CPL 470.05[2];  People v. Gonzalez, 9 A.D.3d 374, 778 N.Y.S.2d 921, lv. denied 3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831), and, in any event, is without merit (see People v. Oglesby, 7 A.D.3d 736, 776 N.Y.S.2d 838, lv. denied 3 N.Y.3d 679, 784 N.Y.S.2d 18, 817 N.E.2d 836).

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