Peolple v. Carney , 425 N.Y.S.2d 323 ( 1980 )

Ross, J.

(dissenting). I dissent and would affirm the judgment of conviction.

Defendant entered a plea of guilty after his motion to suppress physical evidence was denied. The minutes of the suppression hearing were never transcribed, and a hearing to reconstruct was thereafter held. At this latter hearing, Officer Morris, the arresting officer, who was the sole witness at the suppression hearing, recalled that he and his partner were returning to the station house after responding to a radio call of robbery in progress in which the owner of a liquor store had been shot. One block from the crime area an unidentified motorist informed the officers that "two very suspicious men” had entered a bar across the street from the robbed liquor store. The officers, accompanied by the informant, proceeded to the bar, where the informant entered and identified the defendant and a companion. The police with guns drawn, frisked the defendant and retrieved a handgun. Nothing was found on defendant’s companion. The two suspects were thereafter presented to the injured store owner who could not identify them as the assailants.

Defendant’s trial attorney recalled there was no testimony as to the informant entering the bar. However, he remembered the officer’s testimony to be that the motorist advised the police "the two men who held up the liquor store were across the street in a bar and grill”.

The Trial Judge, who also retained no memoranda of the suppression hearing, by affidavit averred that there was testimony that one of the suspects was reportedly wearing a jacket of a specific color. The defendant, when seized, was wearing similar apparel.

On any version of the above testimony, the police could reasonably infer that the defendant had committed a felony and, knowing the proprietor of the premises had been shot, were authorized to frisk. (People v De Bour, 40 NY2d 210, 233; People v Green 35 NY2d 193.) Moreover, it cannot be said that their conduct was not reasonably related to the attendant circumstances. (People v Cantor, 36 NY2d 106, 111.)

Accordingly, the judgment should be affirmed.

Sullivan, J. P., Lupiano and Yesawich, JJ., concur with Silverman, J.; Ross, J., dissents in opinion.

Determination of appeal from judgment, Supreme Court, New York County, rendered on February 25, 1976, held in abeyance and the matter remitted to Justice Ascione for reconstruction of the record in accordance with the opinion of this court filed herein. Appellant’s request for leave to file a supplemental record is denied.