People v. Vincente , 100 A.D.2d 789 ( 1984 )

Order, Supreme Court, New York County (Felice Shea, J.), entered March 22, 1982 granting defendant’s motion to suppress physical evidence consisting of a handgun and 23 glassine envelopes of cocaine, and statements made by the defendant, affirmed. HThe order of suppression should be affirmed for the reasons stated by the suppression Justice, f As the partial dissent observes, the issue is largely one of credibility. We should not interfere with a determination on a motion to suppress by substituting our judgment as to the credibility of a witness for that of the suppression Justice. 11 The only witness was one of the four police officers who apprehended and seized the defendant. The suppression Justice stated: “I found Police Officer Bernagozzi gave some credible testimony, however, I found his testimony in several important respects to be of dubious value, evasive and tailored to meet constitutional objections.” H Respecting the location of the garbage can, the court noted that the officer testified that the radio run described the garbage can as “ ‘by a liquor store’ instead of the more probable near or in front of a liquor store.” The court concluded that the officer used the word “by” in an effort “to explain the defendant’s presence 50 feet west of the liquor store.” 11 The court further noted that the officer “noticed no garbage can on 123rd Street other than the one near defendant”. The court observed that such testimony “does not have the ring of truth and seems to be designed to bolster the identification of the defendant as the suspect described in the radio run.” The court doubted that there was only one garbage can in the street in the area. 11 The court further noted that there was no description of the appearance of the three or four other people in the area in front of the liquor store. The court stated: “Defendant did no act that would cause suspicion and the police asked no questions. Wholly on the basis of the radio run and what was observed, Police Officer Conway, a uniformed police officer who arrived right behind Officer Bernagozzi in a second radio motor patrol car, frisked defendant and retrieved a gun from defendant’s waistband.” A search of the garbage can revealed nothing. Thus, the sole predicate for the police action was the anonymous radio run stating “in substance”, as the suppression Justice found, “that a male Hispanic wearing a black hat, tan jacket and brown pants was selling drugs in front of or near a liquor store, and further that a gun and drugs were in a garbage can.” This obviously imposed a duty on the police to respond and to investigate. However, unlike People v McLaurin (56 AD2d 80, 84, revd on dissenting opn 43 NY2d 902), the description did not indicate that the person involved was dressed in an unusual manner. Moreover, in McLaurin the individual was the only person on the street in the early hours of the morning. In our case it is conceded that several persons were at the location, and that there was no description of their clothing. The immediate frisk of the defendant has as its principal purpose discovery of evidence of a crime, not to allow the officers to pursue their investigation without fear of violence. In McLaurin there was only one officer, whereas here there were three or four. Here, the suspect did not completely fit the description. McLaurin walked with a limp, as the radio run reported. Here, as the suppression Justice observed, the description which matched the defendant (“male, Hispanic, tan jacket”) is “almost non-specific on a street in Spanish-Harlem.” H In People v Sustr (73 AD2d 582), the defendant perfectly matched the description given by the informant, “a light-haired white man [ini a silver jacket” standing on a specific street corner amid a group of other people. The danger that this defendant might use a gun ultimately found on his person was not manifest, since the report described the gun as being in a nearby garbage can, and defendant made no move which would indicate any danger. As stated here by the suppression Justice: “Under the circumstances herein, there was no appropriate indication for the pat down of the defendant by Police Officer Conway. There was no inquiry by any of the four officers present prior to the frisk. There was no furtive or suspicious activity on the part of the defendant, no factor rapidly developing or observed at the scene which might have elevated the suspicion of the police to a reasonable belief that they were in danger. Cf., People v. Benjamin, 51 New York Second, [267].” Concur — Sandler, Silver-man and Fein, JJ.