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PEOPLE v. SMITH

93 A.D.2d 432 (1983)

The People of the State of New York, Appellant, v. Timothy Smith, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

May 10, 1983

Attorney(s) appearing for the Case

Charles E. Knapp of counsel (Donald J. Siewert with him on the brief; Robert M. Morgenthau, District Attorney, attorney), for appellant.

Judith Preble of counsel (William E. Hellerstein, attorney), for respondent.

ROSS, J. P., BLOOM and ALEXANDER, JJ., concur with ASCH, J.; FEIN, J., concurs in an opinion.

ASCH, J.

On August 26, 1981 at about 9:50 P.M., Transit Police Officers Christopher O'Brien and Henry McCormick were on the mezzanine level of the 125th Street and Lexington Avenue subway station. Officer O'Brien first noticed defendant as he was walking down the stairs from the street above in the company of another male. From a distance of about 10 feet, the officer observed a distinct bulge in defendant's waistband which "seemed to outline the handle...

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