Opinion
March 29, 1994
Appeal from the Supreme Court, Bronx County, Joseph Cerbone, J. Joseph Mazur, J.
The arresting officer's testimony that defendant, having hastily exited a livery cab upon its being stopped for a traffic infraction, abruptly turned away from the arresting officer while sharply maneuvering his arm and shoulder up in a manner consistent with reaching for his waistband, was not incredible as a matter of law, and, in the context of a rapidly unfolding street encounter, justified the officer's belief that he was in imminent danger (see, People v. Benjamin, 51 N.Y.2d 267, 271). The officer's approach of the cab from the rear was in accordance with standard police procedure used in traffic stops, and there is no reason to disturb the hearing court's finding that the officer's actions in raising his hands and saying "where are you going, what's the rush" was an instinctive reaction to defendant's abrupt movements and not a constructive seizure.
Concur — Ellerin, J.P., Kupferman, Ross, Nardelli and Williams, JJ.