People v. Andrews

• Decision Date: 16 October 1997
• Citation: 663 N.Y.S.2d 530,243 A.D.2d 321
• Parties: , 1997 N.Y. Slip Op. 8498 The PEOPLE of the State of New York, Respondent, v. Louis ANDREWS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 530

663 N.Y.S.2d 530

243 A.D.2d 321, 1997 N.Y. Slip Op. 8498

The PEOPLE of the State of New York, Respondent, v. Louis ANDREWS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 16, 1997.

Melissa Goldstein, for respondent.

Lisa B. Freeland, for defendant-appellant.

Before ELLERIN, J.P., and WILLIAMS, MAZZARELLI, ANDRIAS and COLABELLA, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Tompkins, J., at suppression hearing; James Yates, J., at plea and sentence), rendered May 9, 1996, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree and sentencing him, as a second violent felony offender, to a determinate term of imprisonment of four years, unanimously affirmed.

On October 31, 1995, at approximately 3:50 p.m., uniformed Officers Langellotti and Acevedo were parked in a patrol car at 250 West 135th Street between Seventh and Eight Avenues in Manhattan, when they received a radio transmission based upon an anonymous 911 call that reported that there were "three men with guns" at "141st Street and Edgecomb Avenue." The caller described the three men as black, one of whom wore "all black," another of whom was clad in "a black goose down jacket," and a third of whom had on a "gray hoody and blue jeans." Upon hearing the transmission, Officers Calamera and Pasquale, driving nearby in their patrol car, responded as back up to Langellotti and Acevedo. They proceeded north on Eighth Avenue, turned West on 141st Street (a short block from Edgecomb Avenue) when Calamera immediately observed two men fitting the descriptions transmitted standing on the south side of the street, about two-thirds of a block from the specified location. Arriving shortly thereafter (approximately 1 1/2 minutes after the radio transmission), Langellotti and Acevedo also noticed that the two men fit the descriptions provided.

Langellotti observed the defendant wearing a black goose down jacket. The other man, later identified as co-defendant Waters, was wearing a black leather jacket and what at first appeared to be black jeans, but were actually dark blue jeans. Langellotti observed no black men nearby or other individuals in the area who fit the descriptions given over the radio.

Officer Calamera exited his vehicle, and, without drawing his gun, told defendant and Waters to put their hands at their sides and informed them he was going to pat them down because of a radio call he had received. Ostensibly out of concern for his and the other officers' safety, Langellotti approached the suspects and requested: "do me a favor, please put your hands on the wall". They complied.

Langellotti patted down defendant while Calamera patted down Waters. Langellotti initially patted defendant's outermost garment. Meanwhile, Calamera, finding it "impossible to feel if there was anything" in Waters' "bulky jacket" and fearing for his safety, reached underneath the jacket, where he felt the butt of a gun. With Langellotti looking on, Calamera removed a Glock 9 millimeter semiautomatic pistol from Waters' waistband. Upon seeing the weapon, Langellotti again patted defendant down the outside of defendant's jacket and felt a "hard object" along defendant's waist. He then unzipped defendant's "heavy" goose down jacket, felt what appeared to be the butt of a gun and pulled up defendant's shirt to remove a loaded .38 caliber revolver. Only ten to fifteen seconds had elapsed from the time Langellotti arrived at the scene. Defendant was thereafter placed under arrest.

Following a hearing, the Court denied defendant's motion to suppress the weapon and statements by defendant following its seizure and defendant's arrest. For the reasons discussed below, we find no basis to disturb that determination.

Any inquiry into the propriety of police conduct must weigh the degree of intrusion it entails against the precipitating and attending circumstances (People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). An anonymous tip that gives a general description and location of an individual with a gun merely furnishes the police with the common-law right to inquire (People v. Stewart, 41 N.Y.2d 65, 69, 390 N.Y.S.2d 870, 359 N.E.2d 379). However, where the anonymous information is so specific and congruous with that which is actually encountered that the reliability of the tip may be reasonably assumed, or when the information provided by the tip is considered in conjunction with the attendant circumstances and exigencies, more intrusive police action may be justified (People v. Gaines, 159 A.D.2d 175, 177, 559 N.Y.S.2d 524, lv. withdrawn 76 N.Y.2d 986, 563 N.Y.S.2d 774, 565 N.E.2d 523).

In People v. Salaman, 71 N.Y.2d 869, 527 N.Y.S.2d 750, 522 N.E.2d 1048, a police officer received an anonymous tip of a black male with a gun at a specified location wearing a long beige overcoat and a maroon sweatshirt with a hood on it. On arriving at the intersection, he observed approximately 25 persons, but only one meeting the description. The officer then conducted a protective pat down of the individual's outer clothing. The Court found that the officer's independent observations corroborated the information received, both as to the specific description of the suspect and as to the exact location where he could be found. Noting also that it was night in a high crime neighborhood, and that the officer testified he acted for his own safety and others in the vicinity, the Court held the degree of intrusion was reasonable (see also, People v. Perez, 224 A.D.2d 313, 638 N.Y.S.2d 441, affd. 88 N.Y.2d 1059, 651 N.Y.S.2d 403, 674 N.E.2d 333; People v. Tucker, 207...