People v. Henderson, 5458 4816/08

• Decision Date: 28 June 2011
• Docket Number: 5458 4816/08
• Parties: The People of the State of New York, Respondent, v. Kiani Henderson, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 05566

The People of the State of New York, Respondent,

v. Kiani Henderson, Defendant-Appellant.

5458 4816/08

Appellate Division of the Supreme Court of the State of New York

ENTERED: JUNE 28, 2011

Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels, Román, JJ.

Steven Banks, The Legal Aid Society, New York (Michael McLaughlin of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J. at hearing; Lewis Bart Stone, J. at plea and sentencing), rendered June 25, 2009, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

The court properly denied defendant's suppression motion. The police officers had a reasonable, objective basis for concluding that the object they saw in defendant's waistband was a pistol. The officers saw a bulge, which they described in detail. Although the officers did not see the outline of an entire weapon, the shape of the bulge resembled the outline of the grip of a pistol. In addition, defendant made repeated motions that the officers recognized, from their experience, as typical of attempts to adjust a firearm kept in a waistband. Accordingly, the police had reasonable suspicion justifying a stop and frisk (see e.g. Matter of George G., 73 AD3d 624 [2010]; People v Quan, 182 AD2d 506 [1992], lv denied 80 NY2d 836 [1992]).

Defendant did not preserve his contention that the police officers, at most, should have initially conducted a patdown, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see People v Smith, 93 AD2d 432, 434 [1983], lv denied 60 NY2d 594 [1983]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK