In re Wesley M. , 600 N.Y.S.2d 67 ( 1993 )

Order, Family Court, Bronx County (Rhoda J. Cohen, J.), entered on or about February 27, 1992, which, after a hearing, granted the respondent’s motion to suppress physical evidence and dismissed the juvenile delinquency petition, affirmed, without costs.

At a hearing conducted in response to the respondent’s motion to suppress physical evidence, Police Officer Christopher Perino testified that he received a radio report of a man with a gun at the corner of Brandt and University Avenues at 9:45 p.m. on November 2, 1991. The report described the suspect as a male black, approximately 14 years of age, wearing a black hat, brown jacket, dark blue jeans and brown boots. On cross-examination, however, a computer print-out of the report was introduced and indicated that the suspect was actually described as wearing a blue hat and beige sweatshirt. He was also seen sitting on a Cadillac in front of a grocery store.

When the officer and his partner arrived at the described location, they saw the respondent among a group of five or six teenagers walking down the street. The officers then drove to the corner of 174th Street and University and veered the car around to cut off the path of the group of teenagers. Using the car as cover, the officers approached the respondent with their revolvers drawn, but pointed at the ground. The respondent saw the guns and stopped. According to Perino’s testimony at the hearing, the respondent then put his hands up and said "I am carrying an air gun.” However, this testimony was the first time Perino "memorialized” the respondent’s statement. He conceded that he never mentioned the respondent’s assertion of possessing an air gun in the deposition he filed in support of the petition, in a complaint report or in a Probation Intake Referral report he had filed.

Perino added that he saw a bulge in the respondent’s waistband and removed an air pistol. However, he changed his testimony three times in describing the exact time when he first saw the bulge. At one point, he stated that he first noticed the bulge when the respondent put his hands up in response to the officers’ approach. He later stated that he saw it when the officers first positioned their patrol car at the corner of West 174th Street. Finally, he testified that he first observed the bulge in the respondent’s waistband when he exited the car with his gun drawn. Ferino also conceded that the respondent’s clothing was bulky and that he could not detect the presence of a weapon from the bulge. After removing the air pistol, a thorough search of the respondent was conducted and 54 decks of heroin were removed from his pants pocket.

The Family Court rejected the officer’s testimony as to the time when he first saw the bulge in the respondent’s waistband as unreliable. The court further found that while the officers had the right to inquire, their approach with guns drawn constituted an impermissible detention. Accordingly, the respondent’s motion to suppress was granted and the petition was dismissed.

We agree with the Family Court that the circumstances presented did not warrant the actions taken by the officers. The officers, upon arriving at the location described in the radio report, observed the respondent nearby, walking with a group of teenagers. He was not sitting on a Cadillac nor was he engaged in any furtive or suspicious behavior. The Family Court rejected the conflicting testimony of the officer as to the time when he first observed a bulge in the respondent’s waistband, and since such determination is to be accorded much weight (People v Prochilo, 41 NY2d 759, 761), we find that the officer did not see the bulge through which he conceded he did not see the configuration of a weapon, at the time he approached the respondent.

Because the respondent’s clothing was similar to that described generally in the radio report, the officer did have a common law right to inquire (see, People v Gray, 154 AD2d 301; see also, People v Maya, 172 AD2d 565, lv denied 78 NY2d 1013; People v Patterson, 156 AD2d 723; People v Perez, 125 AD2d 419). This right "is activated by a founded suspicion that criminal activity is afoot and permits * * * a policeman * * * to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (People v De Bour, 40 NY2d 210, 223; see also, People v Hollman, 79 NY2d 181). Although the dissenter agrees that the circumstances presented only provided the officers with the right to inquire, he maintains that the officers’ approach with weapons drawn did not constitute a seizure of the respondent, but was merely a minimal step taken to protect themselves while they investigated further. We disagree.

De Bour specifically excludes a forcible seizure from the actions permissible to conduct an inquiry. Here, no inquiry was even attempted. Instead, the officers blocked the respondent’s path with their patrol car and approached with guns drawn. The measures taken were more than a "simple” precaution as the dissenter maintains and constituted a forcible seizure (see, People v Diaz, 81 NY2d 106; People v Hicks, 68 NY2d 234; People v Cantor, 36 NY2d 106; People v Wilson, 175 AD2d 15, lv denied 78 NY2d 1015; People v Machuca, 156 AD2d 993). Since such seizure was unlawful, the evidence obtained as a result thereof was properly suppressed (see, People v Cantor, supra). Concur—Rosenberger, J. P., Ellerin and Rubin, JJ.