Appeal from an order of the County Court of Sullivan County (Kane, J.), entered September 27, 1993, which granted defendant’s motion to suppress evidence.
Defendant was the sole passenger in an automobile stopped by State Trooper David Rivera on a remote stretch of State Route 17, a limited access divided highway, avowedly to investigate what appeared to be a bent front license plate. Rivera directed the driver to exit the vehicle and walk around to the rear, where Rivera questioned him concerning a number of matters, including the origin and destination of his trip and his relationship to defendant, and then subjected him to a pat-down frisk. Finding nothing, Rivera then turned his attention to defendant. Because the information she imparted was inconsistent in some respects with that given by the driver and because she appeared nervous, Rivera directed defendant to exit the vehicle. Then, noting that defendant walked "hunched over” with her arms wrapped around her, Rivera directed defendant to stand upright and unzip her jacket and hold it open. He then subjected her to a pat down, whereupon he felt an object in her pants waistband, which he described as hard and the size of a small loaf of bread. Rivera asked defendant what the object was; she responded that she did not know. Rivera then reached in and seized the object, which proved to be a package of cocaine, giving rise to the present charge of criminal possession of a controlled substance in the first degree.
Following a suppression hearing, County Court rejected the challenges directed to Rivera’s initial stop of the vehicle, his action in directing both the driver and defendant to exit the vehicle and subjecting them to questioning wholly unrelated to the vehicular offense serving as the professed predicate for the stop and his pat-down frisk of the two of them. County Court concluded, however, that because "it did not resemble or feel like a weapon”, Rivera’s seizure of the package of cocaine from defendant’s waistband was unlawful. The People appeal County Court’s ensuing order suppressing the cocaine
We affirm. Affording appropriate deference to County Court’s assessment of Rivera’s testimony and the inferences to be reasonably drawn from it (see, People v Slater, 173 AD2d 1024, 1025-1026, lv denied 78 NY2d 974; People v Ackerman, 162 AD2d 793, 795), we discern no basis for upsetting the hearing court’s findings that the object Rivera detected in his pat-down frisk of defendant "did not resemble or feel like a weapon”, that "[t]here was nothing to suggest that the item was a weapon” and that "nothing within [Rivera’s] observations * * * warranted or justified the further intrusion of removing the contraband from [defendant’s] person”. In fact, the People freely acknowledge that the object did not feel like a weapon. Rather, the question to be decided on this appeal, as expressly posed in the People’s brief, "is whether a [police officer] has the right during a protective pat down to investigate further when he discovers an unknown, unidentifiable, and suspiciously placed object, which the subject refuses to identify [and] which the [police officer] can neither identify as a weapon nor as something which is not a weapon”. In that connection, it is the People’s contention that, fearful for his safety following the disclosure of a hard brick-like object in the waistband of defendant’s pants, rather than await the "glint of steel”, Rivera was entitled to remove the object to determine if it was a weapon. We disagree.
Fundamentally, "where a visual observation or a limited protective frisk of [a subject] reveals a bulge, that bulge must look or feel like a weapon before the officer is entitled to subject [her] to a further and more intrusive search” (People v Robinson, 125 AD2d 259, 261, appeal dismissed 69 NY2d 1014; see, People v Sanchez, 38 NY2d 72, 75). Here, the People’s position would permit the seizure of an object whenever a pat down cannot definitively exclude it as a weapon (see, People v Diaz, 81 NY2d 106; People v Sanchez, supra; People v Robinson, supra), thereby turning the Terry analysis (Terry v Ohio, 392 US 1) on its head. Nor was the seizure justified by defendant’s refusal to identify the loaf-shaped object, which we view as evidence of nothing more than an election to exercise her legitimate right to privacy (see, People v Diaz, supra, at 111).
Mikoll, J. P., and Yesawich Jr., J., concur.