People v. Brockington

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (G. Goldstein, J.), rendered December 7, 1988, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence. [744] Ordered that the judgment is reversed, on the law and the facts, the motion is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order, in its discretion, pursuant to CPL 160.50. The record reveals that an undercover police officer entered a location known for trafficking in narcotics, where he purchased two vials of crack cocaine from two men. The defendant was not seen at the location at any time during the officer’s purchase. Following his purchase, the undercover officer radioed his back-up team with descriptions of the two suspects and directed them to the location. When another police officer responded to the location where the drug sale had taken place, he observed a man, fitting the description of one of the suspects, along with another man, later identified as the defendant, both moving hurriedly into an apartment. The officer ordered them out into the hallway, where he conducted a pat-down search of each individual. Nothing was found on the individual who fit the description given to him by the undercover officer. However, the officer felt a "large bulge” in the defendant’s front left pants pocket, which he believed to be vials of the type used to package crack cocaine. Although the officer did not believe that the bulge was a weapon, he nevertheless put his hand into the defendant’s pocket and removed 135 vials of crack cocaine and $481. Among the bills recovered from the defendant were two $10 bills of prerecorded "buy” money that the undercover officer had used to purchase the two vials of crack cocaine earlier that day. Under the circumstances, the police officer acted unreasonably in searching the defendant’s pockets after determining that he was unarmed. The record is devoid of any indication that the arresting officer reasonably suspected that he was in danger of physical injury at the time he reached into the defendant’s pocket. Once a reasonable fear for safety had abated, the police were required to discontinue their search. Accordingly, the subsequent seizure of contraband from the defendant’s pockets was improper (see, People v Roth, 66 NY2d 688, 690; People v Montero, 149 AD2d 628, 629; People v Vullis, 131 AD2d 616, 617). Therefore, the physical evidence must be suppressed arid the indictment dismissed. In light of this determination, the defendant’s remaining contention need not be addressed. Kunzeman, Miller and O’Brien, JJ., concur.