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THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ERIC WILLIAMS, Respondent.

Order unanimously affirmed and indictment dismissed. Memorandum: The People appeal from an order granting the motion of defendant to suppress physical evidence seized from his person during a patdown frisk. The People contend that the search of defendant's pants pocket was justified because the police reasonably suspected from the frisk that the object in defendant's pocket was a weapon and that the search was conducted incidental to defendant's arrest. Neither contention was raised before the suppression court, and thus, neither contention has been preserved for our review ( see, CPL 470.05; People v Galak, 80 N.Y.2d 715, 717, n; People v. Stith, 69 N.Y.2d 313, 320; People v. Fino, 24 N.Y.2d 1020). In any event, the evidence does not support either contention. The officer who conducted the frisk did not testify that he believed that the object, a hard ball containing 41 packets of cocaine, was a weapon. The suppression court determined that the object could not reasonably be considered to pose any danger to officer safety. Thus, a further search of defendant's pocket was not justified ( see, People v. Diaz, 81 N.Y.2d 106; People v. Roth, 66 N.Y.2d 688; People v. Clark, 213 A.D.2d 946; People v. Robinson, 125 A.D.2d 259, appeal dismissed 69 N.Y.2d 1014). Further, the search cannot be justified on the theory that it was contemporaneous with an arrest of defendant for criminal possession of a weapon ( cf., Rawlings v. Kentucky, 448 U.S. 98, 111; People v. Landy, 59 N.Y.2d 369; People v. Evans, 43 N.Y.2d 160, 166). The record of the suppression hearing is devoid of proof that defendant was arrested on a weapons charge.

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PEOPLE v. WILLIAMS
(Jul 14, 1995)