SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
CRIMINAL TERM, PART K-21, QUEENS COUNTY
125-01 QUEENS BOULEVARD, KEW GARDENS NEW YORK 11415

PRESENT :                                     HON. MARK H. SPIRES
                                                                JUSTICE

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THE PEOPLE OF THE STATE OF NEW YORK           IND. NO.: 1434/99

                        -AGAINST-                                           HEARING: MAPP/WADE

ANTAR COHEN
                                                 Defendant(s)
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For the motion Gertrude Rosenfeld, Esq.

Opposed Nicole Baker, A.D.A.

A hearing was held before this Court to determine whether the physical evidence recovered from the defendant, to wit: a gun, was obtained in a lawful fashion consistent with the defendant's constitutional rights. (Mapp)

At the outset of the hearing, the People withdrew their notice pursuant to CPL '710.301(b), eliminating the need for this Court to conduct a hearing on the potential suggestiveness of the defendant's prospective identification. (Wade).

Police Officer Edward Smith testified at this hearing, as a witness for the prosecution. I find this police officer credible as a matter of law. As such, this Court makes the following findings of fact and conclusions of law.

Findings of Fact

On May 22, 1999, Police Officer Smith was working with his partner, Police Officer Timothy Murphy, on a 4 to 12 p.m. tour of duty at the 101st precinct. Both officers were in uniform, assigned to a marked police vehicle. Police Officer Smith was the operator of that vehicle on that date.

At approximately 11:08 p.m., the police officers received a radio run assignment to immediately respond to the location of 413 Beach 28th Street, a residence in Far Rockaway, Queens. The radio run indicated that there was a "man with a gun" at the location. At approximately 11:10 p.m., the officers arrived at the location. They briefly interviewed a distraught complainant, Ms. Pearl Ward, outside the location, on the front steps. Ms. Ward described the perpetrator as a male black with a dredlock hairstyle, wearing a gray shirt, blue jeans, and riding a blue mountain bike. She told the police officers that the perpetrator had "stuck a gun in her face."

After broadcasting the perpetrator's description over the radio, the officers proceeded to canvass the area. Two blocks away from the scene of the menacing with the weapon, they came upon an individual who matched the description of the perpetrator, this defendant. The defendant was standing next to a blue bicycle, in between two stores, in a well-lit area. The time was 11:22 p.m.. The officers exited their vehicle, pulled out their weapons and ordered the defendant to drop to the ground. The defendant refused to comply, so the officers pushed him down on his stomach, and handcuffed him for their physical safety. The police officers then reholstered their weapons.

Police Officer Smith proceeded to pat down the defendant, and observed and then felt a bulge in the right pocket of the defendant's "cargo" jeans. Police Officer Smith removed a black 22 caliber semi-automatic pistol, and proceeded to voucher it. As he did so, Police Officer Smith noticed the serial number of the weapon had been removed. The defendant was then placed under arrest.

The defendant urges this Court to suppress the weapon recovered from his pocket. The defendant argues that the police officers handcuffed him without need, and did not make an initial lawful inquiry before doing so. The defendant argues that the officer's articulation that he "feared for his life" were merely words not supported by the reality of the situation.

The People disagree. The People argue that the police officers acted reasonably under the circumstances. They interviewed a complainant, who had just been menaced by an individual with a gun. They were provided with a complete description of this individual. After a canvass of the only minutes, they located an individual who fit the exact description only two blocks away from the incident. When the defendant refused to comply with their order, they pushed him to the ground and subsequently recovered a weapon with the serial numbers removed. The People assert that the actions of the police officers were legal and proper.

Conclusions of Law

Criminal Procedure Law '140.10 provides that "a police officer may arrest a person for ... (b) a crime which he has reasonable cause to believe that such person has committed ... whether in his presence or otherwise." see, also, Terry v. Ohio, 392 US 1 (1968). "Reasonable suspicion" is the quantum of knowledge sufficient to induce a reasonably prudent and cautious person under the circumstances to believe that criminal activity is at hand. see, People v. Martinez, 80 NY2d 444 (1992). People v. DeBour, 40 NY2d 210 (1976). Forcibly detaining someone ... results in a lesser interference with freedom than does an arrest. Consequently, the police may forcibly stop an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been committed. Martinez, supra at 447. see, also, People v. Leung, 68 NY2d 734 (1986).

The justification of a police officer's actions and the level of intrusion into an individual's privacy must be determined on a case by case basis. see, People v. Stewart, 41 NY2d 65 (1976). DeBour, supra. In hindsight, the court must determine the quality and quantity of information furnished to the police, together with the officer's personal observations at the scene. see, People v. Stroller, 42 NY2d 1052 (1977). The arresting officer must be able to articulate specific facts and conclusions which prompt that level of intrusion. see, People v. Cantor, 36 NY2d 106 (1975).

The factors present here, demonstrated by the testimony of the police officer, consisted of a radio run of a "man with a gun", an exact description of the defendant and his mode of transportation, an identifiable victim and the close proximity in time and distance of the defendant to the scene of the crime. see, e.g., People v. Nelson, 57 NY2d 826 (1982).

It is well-settled law that a radio call from an identified citizen, describing a man with a gun at a specific location will provide the police with reasonable suspicion, especially when the defendant is the only person in the location fitting the description see, e.g., People v. Johnson, 245 AD2d 112 (1st Dept. 1992) or when the suspect is in close spatial and temporal proximity to the crime. see, e.g., People v. Thomas, 224 AD2d 557 (2d Dept. 1996).

When the defendant resembles the suspect of the crime, a police stop is justified. see, People v. Reid, 173 AD2d 810 (2d Dept. 1991).

When the officer forcibly stopped the defendant, he drew his weapon, and pushed the defendant down for the officer's own physical safety. He felt a bulge in the defendant's pocket, which upon search, produced a weapon. Courts have held that the drawing of an officer's weapon will not constitute an arrest where the officer has the right to stop a person and the officer needs to protect himself where he reasonably suspects that the individual is armed and dangerous. see, e.g., People v. Finlayson, 76 AD2d 670 (2d Dept. 1980). see, also, People v. Mondello, 191 AD2d 462 (2d Dept. 1993). This action is permitted for the officer's physical safety. see, e.g., People v. Kornegay, 183 AD2d 919 (2d Dept. 1992). see, also, People v. Boone, 183 AD2d 721 (2d Dept. 1992).

The intrusive action by the police officers in stopping the defendant was additionally justified by the defendant's failure to comply with the police officer's request that the defendant stop. This action of the defendant clearly elevated the officer's suspicion and permitted a more intrusive action. see, DeBour, supra. see, also, People v. Fulmore, 133 AD2d 169 (2d Dept. 1987).

"In assessing the overall reasonableness of police conduct, a court is obligated to consider not only the information which the police initially have, but also information as the events unfold." Fulmore, supra at 170.

Under the facts and circumstances presented here, this Court finds that Police Officer Smith was justified in stopping the defendant in the manner in which he did. The defendant's failure to comply with the officer's request to stop, coupled with the proximity of the defendant to the crime and the matching description provided by the victim justified the intrusive stop. A pat down of the defendant, conducted for the physical safety of the officers resulted in the discovery of the weapon. The police officer certainly had reasonable fear for their safety after the recent interview with the victim, and under the circumstances presented here, took reasonable action.

Accordingly, the defendant's motion to suppress the physical evidence is denied in all respects.

This is the decision and order of this Court.

Kew Gardens, New York

Dated

______________________
MARK H. SPIRES, J.S.C.