People v. Benjamin

• Decision Date: 06 August 1979
• Citation: 71 A.D.2d 857,419 N.Y.S.2d 184
• Parties: The PEOPLE, etc., Respondent, v. Harold BENJAMIN, a/k/a Harold Miley, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 184

419 N.Y.S.2d 184

71 A.D.2d 857

The PEOPLE, etc., Respondent, v. Harold BENJAMIN, a/k/a Harold Miley, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 6, 1979.

Rudy Hirschheimer, Kew Gardens, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ira I. Schreiber, Far Rockaway, of counsel), for respondent.

Before TITONE, J. P., and SHAPIRO, MARGETT, MARTUSCELLO and MANGANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 22, 1978, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial of a motion to suppress certain evidence.

Judgment reversed, on the law, motion granted, indictment dismissed and the case is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The sole testimony at the suppression hearing was that of Police Officer William Loran. Officer Loran testified that on October 27, 1977, at about 9:00 P.M., he received a radio run which took him to the vicinity of 107th Avenue and New York Boulevard in Queens. The radio run informed him that there were men with guns at that location.

When he arrived at the location he got out of the car and started to proceed down the sidewalk. There were approximately 30 people in the vicinity. In response to a question as to what, if anything, he observed that was out of the ordinary, Loran stated:

"A. As we were approaching the corner I observed the defendant place his hands reach behind him and start stepping back toward the curb, placed me in fear that possibly he had a gun secreted on his person.

"A. I asked him to put his hands back out where we could see them, proceeded to pat him down, felt an object in the rear waistband of his pants, removed the object, and it was a loaded .22 caliber revolver."

On cross-examination Officer Loran could not recall whether the radio run gave any description as to the men at the subject location. When he arrived there with a fellow officer he observed men in various positions. They were not in one large group but were spread along the street. Defendant was in the vicinity of two other people. Officer Loran could not recall whether he searched anyone else prior to patting defendant down. At the time he first saw him, Loran believed defendant was facing in his direction. Loran had exited an unmarked car and was in plainclothes. He was about 10 feet from defendant at the time he first saw him. Loran believed defendant was wearing a jacket which was over the weapon found on the latter in his waistband.

On this record, we hold that the People failed to sustain their burden at the suppression hearing (see People v. Lypka, 36 N.Y.2d 210, 214, 366 N.Y.S.2d 622, 625, 326 N.E.2d 294, 297; see, also, People v. Green, 33 N.Y.2d 496, 500, n. 3, 354 N.Y.S.2d 933, 936, 310 N.E.2d 533, 535). In People v. Wynn 54 A.D.2d 366, 388 N.Y.S.2d 922, this court held that where the primary impetus for a "stop-and-frisk" is a police radio transmission, a two-step analysis should be undertaken. Inquiry should first be had as to the quality of information possessed by the "sender" i. e., that information which is possessed by the police department. If that information were sufficient, had it been given first-hand to the officer acting in reliance on the radio message, to justify the stop and frisk undertaken, no further inquiry is necessary and the People will have been deemed to have met their burden (People v. Wynn, supra, p. 368, 388 N.Y.S.2d p. 924). However, if such information were insufficient the People must then establish that the actions of the officer who received the message were justified by the officer's independent observations either confirming the information received over the radio or noting suspicious conduct or potential danger (People v. Wynn, supra, pp. 369-370, 388 N.Y.S.2d p. 925).

At bar, there is no evidence that the sender of the radio call had sufficient information to justify a stop and frisk. There was no evidence presented concerning the identity of the person who notified the police about the "men with guns". Thus, insofar as the record is concerned, the informant was anonymous. Tips of this nature are of the weakest sort (People v. De Bour, 40 N.Y.2d 210, 224, 386 N.Y.S.2d 375, 385, 352 N.E.2d 562, 572). Furthermore, there was no evidence that Any description of the men was furnished to the responding officers. That being the case, it cannot be said that Officer Loran's independent observations were corroborative of the information received via the transmission (cf. People v. Kinlock, 55 A.D.2d 627, 389 N.Y.S.2d 399, affd. 43 N.Y.2d 832, 402 N.Y.S.2d 573, 373 N.E.2d 372; People v. Stroller, 42 N.Y.2d 1052, 399 N.Y.S.2d 207, 369 N.E.2d 763).

Nor was there anything suspicious about the defendant's conduct in reaching behind his back (see People v. Johnson, 56 A.D.2d 766, 392 N.Y.S.2d 294; cf. People v. De Jesus, 55 A.D.2d 196, 389 N.Y.S.2d 881), or in stepping back toward the curb (see People v. Blake, 51 A.D.2d 748, 379 N.Y.S.2d 461; see, also, People v. Lewis, 49 A.D.2d 558, 372 N.Y.S.2d 215), in light of the fact that Officer Loran had exited from an unmarked car and was dressed in plainclothes.

Although Officer Loran testified that defendant's motions "placed (him) in fear that possibly he had a gun secreted on his person", the test to be applied is an Objective one (see People v. Cantor, 36 N.Y.2d 106, 113, 365 N.Y.S.2d 509, 516, 324 N.E.2d 872, 877; see, also People v. Johnson, supra ; CPL 140.50). A limited search for weapons is authorized where a police officer "Reasonably suspects that he is in danger of physical injury" (CPL 140.50, subd. 3; emphasis supplied), but "(r)easonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances...