People v. Barreto

• Decision Date: 10 May 1990
• Citation: 555 N.Y.S.2d 303,161 A.D.2d 305
• Parties: The PEOPLE of the State of New York, Respondent, v. Benny BARRETO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 303

555 N.Y.S.2d 303

161 A.D.2d 305

The PEOPLE of the State of New York, Respondent, v.Benny BARRETO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 10, 1990.

P. Curran, for respondent.

A. Sarikas, Astoria, for defendant-appellant.

Before MURPHY, P.J., and ROSS, ROSENBERGER, KASSAL and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Murray Mogel, J. at hearing; Alfred Kleiman, J. at plea and sentence), rendered December 9, 1988, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a prior felony offender, to an indeterminate term of imprisonment of two and one-half to five years, unanimously reversed, on the law, the motion to suppress granted, the judgment vacated and the indictment dismissed.The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL § 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30-day period to respondent to move and seek any further stay of the implementation of CPL § 160.50, as in the interest of justice is required.

The issue to be decided on this appeal is the propriety of the stop of defendant and the immediate "grab" of his waist area by the partner of an officer who observed a bulge in defendant's waistband.Defendant was indicted on one count of criminal possession of a weapon in the third degree after the police recovered a .22 calibre revolver from his waistband.Under the totality of the circumstances, we conclude that the stop and "grab" of defendant by the partner of the officer who observed the bulge was not based on his reasonable suspicion that defendant was engaged in criminal activity and that the Supreme Court therefore erred in denying defendant's motion to suppress.

The People called only one witness at the hearing, Police Officer James Duggan, who testified that at approximately 12:50 A.M. on May 28, 1988, he was on anti-robbery patrol at 42nd Street and Eighth Avenue, Manhattan, with his partners, Officers Robert Iaboni and James Carson.As Duggan drove the patrol car up Eighth Avenue, he saw defendant run across the street holding his waist.After defendant entered a movie theatre, Duggan turned to his partners and said "(h)e might have a gun."Duggan parked the car in front of the theatre and waited for defendant to exit.

When defendant emerged from the theatre five minutes later, Duggan observed a bulge, three or four inches long, at defendant's waistband, underneath his tee shirt (which Duggan subsequently stated could have been a tight-fitting sweatshirt) and jeans.Duggan did not see the outline of a gun and stated that the bulge could have been created by a weapon or by a bag of dope.The officers got out of their vehicle, and, while Duggan remained on the sidewalk, Carson approached defendant as he was about to cross the street at a traffic light and immediately grabbed his waist.Duggan approached from behind and heard defendant say "I have a gun."A .22 calibre revolver was recovered from defendant's waistband and he was placed under arrest.Thirty-two rounds of .22 calibre ammunition were later discovered in defendant's pocket at the precinct.

Defendant appeals from the denial of his motion to suppress the gun and his statement to the police.Since we agree with defendant's assertion that the People failed to meet their burden of establishing that the stop and grab by Carson were based on his reasonable suspicion that defendant was engaged in criminal activity (see, People v. Benjamin, 51 N.Y.2d 267, 434 N.Y.S.2d 144, 414 N.E.2d 645;People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294), we reverse.

"(A) police officer may stop a person in a public place ... when he reasonably suspects that such person is committing, has committed or is about to commit" a crime (CPL 140.50(1);Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889;People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562).A limited, protective pat down or frisk for weapons may then be conducted if the officer reasonably suspects that he is in danger of physical injury (CPL 140.50(3)).

Significantly absent from the hearing in this matter is testimony from the officer who actually conducted the stop and "frisk".We therefore have no basis for concluding that Carson's actions were triggered by his reasonable suspicion that criminal activity was afoot or by his fear for his safety.Although Duggan testified that he saw a bulge in defendant's waistband, he never stated that he communicated his observations to Carson.The CPL authorizes a stop of an individual by an officer when that officer reasonably suspects that a crime is being committed and a frisk when that officer reasonably suspects that he is in danger of physical injury.We reject the People's suggestion that we infer that Carson shared Duggan's observations.Duggan testified that he remained on the sidewalk after getting out of the patrol car while Carson walked out into the street.There is, therefore, nothing in the record to support the contention that Carson reasonably suspected that defendant was committing a crime.

Even if Carson, like Duggan, had testified that he saw a bulge in defendant's waistband, such observation alone would not have satisfied the People's burden of proving a reasonable suspicion that defendant was committing a crime.In the "bulge"cases relied on by the People in support of their contention that the stop and frisk were lawful, additional indicia of criminal activity existed to justify the police intrusions.In People v. Benjamin, supra, the officer had received a radio run advising him that there were men with guns at a specified location.In People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380, the officer observed the complete outline of a revolver at defendant's side.In the companion case to Prochilo, People v. Goings, the officer saw the outline of a gun in defendant's pocket.

In the instant case, however, there was no radio run, no anonymous tip, nor can defendant's acts of placing his hands on his sides and crossing the street be considered furtive gestures.There is nothing in the record to indicate that defendant was able to identify the officers, who were in plainclothes, as members of the police department or that defendant attempted to evade them."Behavior which is susceptible of innocent as well...