DECISION AND ORDER Defendant has been indicted and charged with criminal possession of a weapon in the second degree and related charges. The charges are based upon evidence presented to the Grand Jury which established that, on November 9, 2018, defendant was found in possession of a loaded 9mm firearm. Defendant has moved to suppress said weapon. On September 10, 2020, all parties were present in a retrofitted courtroom and all safety protocols were observed, and a joint Dunaway/Mapp hearing was held before the Court. For the following reasons, defendant’s motion is denied. Findings of Fact Police Officer Edwin Vega was the sole witness at the hearing and testified that on November 9, 2018, he was on routine patrol with his partner, Officer Andrew Distelhurst. Vega was assigned to the 47th Precinct’s anti-crime squad and was in plainclothes, driving an unmarked car. Vega had made and participated in hundreds of arrests involving firearms and had received training in the techniques individuals use to conceal weapons and in the telltale signs that indicate someone is carrying a weapon. At around midnight a transmission came over the police radio and the dispatcher indicated that there was a crime in progress involving a firearm (in police code, a “1010″) at 764 E. 213th Street.1 The dispatcher specified that there were males in the lobby of the location with a firearm and that one of the males was a male black, with a “caesar-style” haircut, wearing a black, 3/4 length jacket.2 Within two minutes,Vega and Distelhurst arrived at the location. Vega was familiar with the neighborhood where the building was located as he had patrolled there for over 8 years. He described the area as one known for shootings and narcotics sales based on the fact that he had made numerous arrests there for violent crimes and narcotics offenses. Vega also described the address as a small, multi-apartment, two story building. Photographs of the building indicated that there were five stairs leading to the front door, which opened to a small vestibule that housed mailboxes. A second door opened to a small entrance hallway leading to apartments on the first and second levels. Upon arrival, the officers walked up the stairs to the front door of the apartment building, and Distelhurst opened the front door and Vega followed behind him. Neither officer had his gun drawn. Distelhurst then opened the second door and yelled, “Police, hands, put your hands up. Hands, hands, hands.” Vega observed several males in the hallway. Closest to him was defendant, who matched the person in the radio transmission (the arrest photograph of defendant depicts a black man, with a Caesar-style haircut, who was wearing a 3/4 length black jacket). Vega also observed three males and one female further down the hallway. When Vega first observed defendant, defendant had his hands raised to eye level. Vega saw that in defendant’s mouth was what he believed to be a marijuana joint. Vega’s belief was based on the fact that he saw that the joint was hand rolled and that it had a “pungent, skunky smell”. Vega also observed that defendant had his eyes opened wide and that he appeared surprised. Vega then observed defendant drop his hands to his waistband and “blade” his body in the direction of the individuals down the hallway. Vega explained that, based on his experience and training, blading is a technique where one turns to the side and positions his body away from an observer in order to conceal a weapon. Vega then observed defendant reach for his waistband. In response, Vega placed his hand on defendant’s waistband and felt a heavy, L-shaped object, which he believed was a gun. As Vega attempted to remove the object from defendant’s waistband, defendant attempted to walk away. After a brief struggle, Vega removed a 9mm gun from defendant’s waistband. Vega ordered defendant to put his hands up and to lay on the ground. After a second struggle, Officer Distelhurst placed handcuffs on defendant. Upon recovering the weapon, Vega ascertained that it was loaded with 8 bullets and had a bullet in the firing chamber. Conclusions of Law Police Officer Vega testified credibly. As detailed above, the radio run received by the officers was based on an anonymous 911 call that a black man, with a distinctive hair-style, wearing a 3/4 length leather coat was one of a group of males in the lobby of a building in possession of a firearm. When Officers Vega and Distelhurst arrived on the scene, approximately 2 minutes after hearing the radio transmission, they observed defendant, who fit the description that just had been transmitted. Based on: 1) the reasonable specificity of the description and its congruity with defendant’s appearance; 2) the close temporal proximity between the time of the call and the officers arrival at the location; and 3) that defendant and 4 other individuals were at the specified location, at minimum, the officers had a founded suspicion to make a stop and inquiry of defendant, if not reasonable suspicion to conduct a frisk, when they entered the building and ordered defendant and the others to show and raise their hands. See People v. Hickman, 185 A.D.3d 407 (1st Dept. 2020)(matching description where anonymous radio run of 2 black males, one wearing red shirt, on bicycles, and close spatial and temporal proximity provided reasonable suspicion for stop and pat down). In any event, once Vega observed defendant with a marijuana joint in his mouth in a public hallway, then blade his body, and reach for his waistband, he certainly then had the factual predicate to frisk defendant, if not arrest him.3 In re Camille H., 215 A.D.2d 143 (1st Dept. 1995)(officer observation of individual in possession of cigar-shaped blunt gave officer probable cause to arrest and to search incident to the arrest); CPL 140.50(3)(where police officer reasonably suspects that he is in danger of physical injury, he may conduct a search for a deadly weapon); People v. Benjamin, 51 N.Y.2d 267, 271 (1980)(based on radio call of men with guns at a specified location and officers observation of defendant reach to rear of his waistband, officers had reasonable suspicion to conduct patdown; “absurd to suggest that police officer has to await glint of steel before he can act to preserve his safety.”). Thus, Officer Vega acted appropriately when he touched the object in defendant’s waistband, determined it was a gun, removed it, and placed defendant under arrest. Accordingly, defendant’s motion is denied. This is the decision, order and opinion of the Court. Dated: September 22, 2020
