Opinion
June 8, 1987
Appeal from the Supreme Court, Queens County (Zelman, J.).
Ordered that the order is affirmed.
The arresting officer, the only witness to testify at the suppression hearing, observed no suspicious conduct on the defendant's part immediately before she frisked him. Whether the mere observance of a bulge containing no particular outline in the defendant's left front pocket was a circumstance justifying the frisk (cf., People v Prochilo, 41 N.Y.2d 759) need not be determined. Upon retrieving a plastic beeper from the defendant's pocket the arresting officer should have ended her search. The record is devoid of any indication that she reasonably suspected she was in danger of physical injury (CPL 140.50). Therefore, the officer was not justified in also retrieving small plastic bags containing the contraband, upon which the arrest of the defendant was premised (see, People v McNatt, 65 N.Y.2d 1046; People v Kugler, 122 A.D.2d 955; cf., People v Davis, 64 N.Y.2d 1143). Mangano, J.P., Eiber, Kunzeman and Harwood, JJ., concur.