People v. Celaj

—Judgment, Supreme Court, Bronx County (William Mogulescu, J.), rendered October 12, 1999, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, affirmed. The matter is remitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50 (5). Defendant’s suppression motion was properly denied. In Terry v Ohio (392 US 1 [1968]), the United States Supreme Court determined that a limited search for a weapon may, in certain circumstances, be conducted in the absence of probable cause to arrest, where a police officer’s action “was justified at its inception, and * * * was reasonably related in scope to the circumstances which justified the interference in the first place” (id. at 20). In People v Prochilo (41 NY2d 759, 761 [1977]) the Court of Appeals set forth specific guidelines for evaluating frisks within New York’s four-tier structure for evaluating the propriety of police-citizen encounters (see People v De Bour, 40 NY2d 210, 223 [1976]). Prochilo consisted of three consolidated appeals, all of which involved, as here, a handgun which had been taken from the defendant as a result of a frisk. The Court of Appeals noted that generally, in reviewing suppression rulings, “much weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” (41 NY2d at 761). The Prochilo Court then offered specific guidelines for determining whether a predicate for police action would justify a frisk. These included, but were not limited to: (1) whether there was proof of a describable object or describable conduct which provided a reasonable belief that an individual possessed a gun; (2) whether the manner of the officer’s approach and the seizure of the gun were reasonable; and (3) whether there was evidence of any probative worth that the police were conducting a pretext stop or were otherwise motivated by improper or irrelevant purposes (id. at 761-762). In People v Chestnut (51 NY2d 14, 23 [1980], cert denied 449 US 1018 [1980]), the Court of Appeals applied the principles discussed in Prochilo, warning that, “in this difficult area of street encounters between private citizens and law enforcement officers, [courts must not] attempt to dissect each individual act by the policemen; rather, the events must [72] be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented.” The suppression hearing in this case was held over three years after defendant’s arrest. The motion court recognized that the substantial time lapse invariably resulted in faded memories and inconsistencies in the accounts provided by the four testifying officers. However, despite these inconsistencies, most of which are not germane to the issues on appeal, the totality of the record supports the court’s findings of fact, extracted from the collective testimony, that two to three minutes after receiving a 911 call reporting a dispute involving guns and describing two white men, one in his 60s and one in his 30s in a red Buick Skylark at 754 Mace Avenue, the arresting officer arrived at the scene and observed two men fitting the descriptions, one of whom was defendant. The Buick Skylark was no longer at the location. The arresting officer drove up to 754 Mace Avenue, which was on the south side of the street. As he parked, he observed a white man in his 60s standing in the entryway landing outside the building, with a conspicuous bulge under his jacket in his waistband, at his left hip. Two officers approached defendant (the testimony is inconsistent as to whether the other officer had reached, and was engaged in a conversation with, the defendant before the arresting officer approached). However, it is uncontested that only the arresting officer viewed the waistband bulge, which he testified he thought was a gun. The arresting officer approached defendant and either “lifted up” or “pushed aside” his jacket, revealing a gun. Given that (1) the police were at the address minutes after, and in response to a 911 call describing a dispute with guns; (2) they were presumably anticipating a possible confrontation with armed, dangerous individuals; (3) the arresting officer matched defendant with the 60-year-old white man in the radio call; and (4) the officer observed a bulge in the left side of defendant’s waistband (see People v De Bour, supra at 221 [“unlike a pocket bulge which could be caused by any number of innocuous objects, a waistband bulge is telltale of a weapon”]), the limited frisk of the defendant was justified (see People v Benjamin, 51 NY2d 267, 271 [1980]; People v Chestnut, supra at 22 [“ ‘the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ (Terry [supra at 27].)”]; People v Soler, 268 AD2d 376 [2000], lv denied 95 NY2d 804 [2000] [defendant matched description of a male Hispanic [73] wearing shorts over his pants driving a van, and observation of a suspicious bulge justified the limited protective frisk]; People v Sanders, 235 AD2d 507 [1997], lv denied 89 NY2d 1015 [1997]). People v Garner (196 AD2d 727 [1993]) is instructive. In that case, the police received a radio tip of an armed robbery in progress, akin to the report of a dispute between men with guns reported here. The radio reports in both Garner and this case provided responding officers with a reasonable assumption “that a potential for great danger existed” (Garner; supra at 727), a fear which was heightened, in both cases, by the observation of a bulge in the waistband of defendant, an individual who matched one of the individuals described over the radio (id.; see Benjamin, supra at 270; People v Ayala, 265 AD2d 155 [1999], lv denied 94 NY2d 860 [1999] [anonymous radio call of shots fired, coupled with observation that a driver of the car matching the vehicle described in the radio run in same location provided reasonable suspicion for stop and frisk]). In Garner, the police eventually determined that no robbery had taken place, but we nonetheless held that a limited frisk of the defendant’s waistband area was justified. Although a verbal inquiry preceded the frisk in Garner, the absence of such inquiry does not negate the justified fear of a weapon which supported this frisk (see Matter of Terrell W., 299 AD2d 177 [2002]; People v Tratch, 104 AD2d 503, 504 [1984]). The dissent attempts to distinguish these facts from the requirement set forth in Proehilo that there be, “proof of a describable object or of describable conduct that provides a reasonable basis for the police officer’s belief that the defendant had a gun in his possession” (41 NY2d at 761). However, here, unlike all of the cases reviewed in Proehilo, the officer’s approach was preceded by a 911 call about a dispute with guns. The 911 call provided information that there were armed individuals at the location, a concern which was heightened when one of the officers observed a bulge at defendant’s left hip. People v Russ (61 NY2d 693 [1984]), cited by the dissent, is also distinguishable on its facts. In that case, the 911 call indicated that a suspect sitting in a blue car with a white top at a specific location had passed a weapon to another person. When the police arrived at the location, they saw the suspect sitting in the car. She was asked to step out of the car for inquiry, which the Court found proper (id. at 694). However, the police had been told that the suspect had given the gun to another person, and in the circumstances, which, notably, did not involve the officer’s observation of a bulge, the Court concluded that a frisk was not justified (id. at 695). [74] In this case, the red Buick Skylark had left the area when the police arrived. However, this was only one of a number of facts reported in the 911 call which prompted the police response. The observation of a white male in his 60s with a bulge in the left side of his waistband was consistent with the description a participant in the dispute involving guns reported to the 911 operator. It would not be unreasonable for the officer who conducted the frisk to conclude, upon seeing a bulge at defendant’s left hip, that while the dispute may have been over and the car no longer at the exact location reported in the 911 call, one of the armed participants remained (cf., People v Brown, 215 AD2d 333 [1995] [defendant and another man’s presence approximately three blocks from robbery and their apparent nervousness insufficient predicate for frisk]). In any event, there is no evidence that any of the officers here had an improper motive to single out this defendant, or that their actions were otherwise pretextual (see Prochilo, supra at 762). Concur — Mazzarelli, Sullivan and Marlow, JJ.