People v. Stone , 602 N.Y.S.2d 124 ( 1993 )

—Judgment, Supreme Court, New York County (Murray Mogel, J., at suppression hearing; Paul Bookson, J., at trial and sentence), rendered July 8, 1992, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

Upon the officer’s approach for the purpose of frisking defendant, defendant’s sudden action in striking the officer in the face after calmly complying with the officer’s request to place his arms against a fence was a calculated move not provoked by the officer’s action in initiating the frisk, attenuating any possible illegality and warranting denial of suppression (compare, People v Wilkerson, 64 NY2d 749, 750).

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Murphy, P. J., Ellerin, Wallach, Kassal and Nardelli, JJ.