People v. Manuel , 632 N.Y.S.2d 86 ( 1995 )

—Order, Supreme Court, Bronx County (John Moore, J.), entered on or about December 6, 1993, granting defendant’s motion to suppress physical evidence, unanimously affirmed.

The People’s claim that there was reasonable suspicion to pat down the area where the officer observed an undefined bulge is unpreserved for review as a matter of law (People v Parris, 83 NY2d 342, 351), and we decline to review it in the interest of justice. If we were to review, we would find that the search was not justified. The police lawfully approached a taxicab in order to inform the driver that his brake lights were inoperable. Defendant was seated in the center of the rear passenger seat and glanced to his right upon the approach of the police, who observed a large bulge underneath defendant’s shirt, above the belt line of his pants. As the police acknowledged, there was no indication that the bulge was a weapon. Nonetheless, one of the police officers opened the car door and reached directly towards the bulge. During a fifteen second struggle involving the officers and defendant, one of the officers felt a hard object and subsequently removed a kilogram package of drugs from underneath defendant’s shirt. Under these circumstances, there was no reasonable basis to believe that defendant was armed (People v Robbins, 83 NY2d 928, 930). Concur—Ellerin, J. P., Wallach, Ross, Asch and Mazzarelli, JJ.