People v. Jackson

• Decision Date: 10 June 1985
• Citation: 490 N.Y.S.2d 254,111 A.D.2d 831
• Parties: The PEOPLE, etc., Respondent, v. Edward JACKSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 254

490 N.Y.S.2d 254

111 A.D.2d 831

The PEOPLE, etc., Respondent, v. Edward JACKSON, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 10, 1985.

Steven G. Legum, Brooklyn (Robert J. Carlucci, Brooklyn, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie and Abbe R. Tiger, of counsel), for respondent.

Before LAZER, J.P., and O'CONNOR, WEINSTEIN and BROWN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 17, 1982, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed.

The degree of permissible police action is directly proportionate to the degree of objectively credible information possessed by the police (People v. Scruggs, 90 A.D.2d 520, 455 N.Y.S.2d 22). The common-law right to inquire is activated by a founded suspicion that criminal activity is afoot and entitles a police officer to attempt to obtain explanatory information, by reasonable means not rising to the level of an actual seizure (People v. Cantor, 36 N.Y.2d 106, 114, 365 N.Y.S.2d 509, 324 N.E.2d 872; People v. Rosemond, 26 N.Y.2d 101, 308 N.Y.S.2d 836, 257 N.E.2d 23; People v. Rivera, 14 N.Y.2d 441, 446, 252 N.Y.S.2d 458, 201 N.E.2d 32, cert. denied 379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568). In the instant case, the arresting officer saw defendant leaving the exact location at which a dispute with a firearm had been reported. It was reasonable for the officer to assume that defendant might have witnessed the dispute or that he might be able to provide some pertinent information. Having requested defendant to stop with this purpose in mind, the officer saw the outline of a gun in defendant's right front pocket as he approached him.

The yardstick by which the propriety of a stop and frisk is to be measured is set forth as follows: "A frisk requires reliable knowledge of facts providing a reasonable basis for suspecting that the individual to be subjected to that intrusion is armed and may be dangerous" (People v. Russ, 61 N.Y.2d 693, 695, 472 N.Y.S.2d 601, 460 N.E.2d 1086). At bar, the arresting officer, after observing the outline of a gun in defendant's right front trouser pocket, possessed a reasonable basis for suspecting that the defendant was armed and dangerous (People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363...