People v. Gray
| Decision Date | 31 October 1989 |
| Citation | 546 N.Y.S.2d 844,154 A.D.2d 301 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Michael GRAY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
K.J. Fee, for respondent.
L.E. Noisette, New York City, for defendant-appellant.
Before MURPHY, P.J., and KUPFERMAN, KASSAL, WALLACH and SMITH, JJ.
Judgment, Supreme Court, New York County (Rose Rubin, J.), rendered May 23, 1988, convicting defendant, upon a plea of guilty, of criminal possession of a weapon in the third degree (P.L. § 265.02), and sentencing him to five years' probation, unanimously reversed, on the law, defendant's motion to suppress physical evidence and statements is granted, and the indictment dismissed.
The relevant facts are as follows:
At approximately 1:30 a.m. on August 14, 1986, police officers Joseph Bonomo and Leonard Everline responded to a radio run report of "two male Hispanics with guns, red shirts and safari suit" on 105th Street and First Avenue in Manhattan. The source of this information was an anonymous tip to police emergency telephone number 911.
Upon arriving at the location, the officers observed groups of people standing on each of the four corners of the intersection. These groups, which included black and Hispanic males, totalled approximately 30 to 40 persons. Among those on the northwest corner was defendant, a black male wearing a red jacket and "camouflage" pants.
Bringing their marked radio motor patrol car to a halt five to ten feet from where defendant stood, the officers exited the vehicle with guns drawn and pointed downward, and Officer Bonomo approached defendant, stating that he wished to speak to him. Defendant, whose hands were in his pockets, responded that he had done nothing wrong and did not want to speak with the officer. He then turned to walk away, only to encounter Officer Everline, who was approaching him from the other direction. Everline ordered defendant not to move and to put his hands up on the wall of a building. When defendant again tried to walk away, Everline grabbed and placed him spread-eagled on the hood of the police car. Defendant was then patted down, and a loaded .25 caliber automatic pistol was seized from the lower of two pockets on his right pants leg.
Defendant was placed under arrest and Miranda rights administered. He agreed to speak to the police officers, and stated that he had obtained the gun from his brother in North Carolina because he had been robbed and did not want to be robbed again.
Following a hearing, defendant's motion to suppress the gun and statements was denied, and on March 28, 1988, he entered a plea of guilty to criminal possession of a weapon in the third degree, and was sentenced to five years' probation.
It is well established that an anonymous tip which provides a general description and specifies a location of a "man with a gun" does not, without more, constitute a reasonable suspicion to stop and frisk anyone who may happen to meet the description. People v. De Bour [La Pene], 40 N.Y.2d 210, 224-225, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Stewart, 41 N.Y.2d 65, 69, 390 N.Y.S.2d 870, 359 N.E.2d 379. Such tips "are of the weakest sort since no one can be held accountable if the information is in fact false ... and there is no way to assure ... that the information was communicated and received accurately and was believable ..." People v. De Bour [La Pene], supra, 40 N.Y.2d at 224, 386 N.Y.S.2d 375, 352 N.E.2d 562. For this reason, information anonymously conveyed will generally warrant no more than the exercise of common law right of inquiry.
It is only when the anonymous information is "so specific and congruous" with that which is actually encountered by the responding officers, that the reliability of the tip may reasonably be assumed, justifying more intrusive police action. People v. Benjamin, 51 N.Y.2d 267, 270, 434 N.Y.S.2d 144, 414 N.E.2d 645; People v. Bond, 116 A.D.2d 28, 31, 499 N.Y.S.2d 724. The police are also entitled to take reasonable measures in response to "factors rapidly developing or observed at the scene." Id.
In the case at bar, the information anonymously...
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...was similar to that described generally in the radio report, the officer did have a common law right to inquire (see, People v. Gray, 154 A.D.2d 301, 546 N.Y.S.2d 844; see also, People v. Maya, 172 A.D.2d 565, 567 N.Y.S.2d 889, lv. denied 78 N.Y.2d 1013, 575 N.Y.S.2d 821, 581 N.E.2d 1067; P......
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