People v. Pagan

• Decision Date: 28 May 1991
• Citation: 173 A.D.2d 744,570 N.Y.S.2d 244
• Parties: The PEOPLE, etc., Respondent, v. Luis PAGAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 244

570 N.Y.S.2d 244

173 A.D.2d 744

The PEOPLE, etc., Respondent, v. Luis PAGAN, Appellant.

Supreme Court, Appellate Division Second Department.

May 28, 1991.

Philip L. Weinstein, New York City (Marcelle Brandes, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ernest Burstein, of counsel), for respondent.

Before BROWN, J.P., and SULLIVAN, EIBER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Savarese, J.), rendered December 20, 1988, convicting him of attempted burglary in the second degree, criminal mischief in the fourth degree, and possession of burglar's tools, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Gallagher, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony.

ORDERED that the judgment is affirmed.

After receiving a radio call reporting a burglary in progress and giving a description of the perpetrator, the arresting police officer properly stopped the defendant, whose physical appearance was consistent with the description received and who was spotted in close proximity to the scene of the crime (see, People v. Benjamin, 51 N.Y.2d 267, 434 N.Y.S.2d 144, 414 N.E.2d 645; People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Cortijo, 141 A.D.2d 830, 529 N.Y.S.2d 887). Moreover, once the officer observed a bulge in the defendant's breast pocket, the officer was justified in conducting a limited pat-down search to ascertain whether the defendant was armed with a weapon (see, People v. Spivey, 46 N.Y.2d 1014, 416 N.Y.S.2d 534, 389 N.E.2d 1056; People v. Alford, 146 A.D.2d 635, 536 N.Y.S.2d 848; People v. Cunningham, 71 A.D.2d 559, 418 N.Y.S.2d 780, affd. 52 N.Y.2d 927, 437 N.Y.S.2d 669, 419 N.E.2d 347), and was further justified in removing what felt like a sharp object from the defendant's pocket (see, People v. Taylor, 123 A.D.2d 651, 506 N.Y.S.2d 916).

Furthermore, detaining the defendant by transporting him to the scene of the crime for the purpose of confirming or dispelling the police officers' reasonable suspicion was lawful. The police officers knew that there had been an attempt to commit a burglary. Additionally, the period of detention of the defendant was less than 10 minutes, the scene of the crime was two blocks away from where the defendant had been apprehended,...