People v. Delmonico

Weinstein, J.,

dissents and votes to affirm the judgment appealed from, with the following memorandum: Under the circumstances at bar, the police officer did in fact have a reasonable suspicion that defendant had committed a crime and was armed, and accordingly the officer acted prudently in order to secure his own safety. The predicate for the acts of the officer was information contained in a radio message indicating that a burglary was in progress and that there was a possibility of encountering a man with a gun at the given location. This radio message triggered the officer’s common-law right to detain to the extent necessary to obtain explanatory information (People v La Pene, 40 NY2d 210, 223). The officer discovered the defendant in the driveway of the subject location, engaged in a heated verbal exchange with another man, who might well have been the homeowner. The defendant brushed into the uniformed police officer and seemed somewhat “restricted” and “self-conscious” in his movements. In my opinion, these observations clearly warranted a reasonable suspicion on the part of the officer that he might be in danger of physical injury by virtue of the defendant being armed (People v La Pene, supra, p 224). While it is true that no description of the burglar was furnished in the course of the radio message, the cumulative effect of that message in conjunction with the factors subsequently encountered at the announced location, collectively supported a reasonable suspicion justifying the more intrusive police conduct inherent in a frisk (see People v Benjamin, 51 NY2d 267; People v Olsen, 93 AD2d 824). Accordingly, I deem the frisk, which resulted in the discovery of the holster on defendant’s person, to have been entirely legal. As expressed in a recent case from the First Department: “ ‘Courts simply must not, in this difficult area of street encounters between private citizens and law enforcement officers, attempt to dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented (People v Chestnut, 51 NY2d 14, 23)’” (People v De Jesus, 92 AD2d 521, 522). In a similar vein, the United States Supreme Court has made the following recognition with respect to the standards to be applied in determining whether probable cause for an arrest or for a search and seizure exists: “In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved * * * Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice” (Brinegar v United States, 338 US 160,175-176). The discovery of defendant’s holster as a result of the legal frisk and the retrieving,of a gun, which fit that holster, from an area in which, as the majority notes, defendant did not demonstrate any expectation of privacy, gave rise to probable cause to arrest. Defendant thereafter freely waived his rights and admitted that he threw down the gun as soon as he saw the first police car turn the comer. Even if defendant had been illegally detained, his act of discarding the revolver was not in direct and immediate response to his detention. Rather than constituting “a spontaneous reaction to a sudden and unexpected confrontation with the police, the defendant’s attempt to discard the revolver was an independent act involving a calculated risk” (People v Boodle, 47 NY2d 398,404, cert den 444 US 969). Having been thus abandoned by defendant, the gun was properly admitted into evidence. It is my conclusion, based upon these circumstances, that the holster, gun and defendant’s incriminating statement are admissible in evidence. I accordingly vote to affirm the judgment of conviction.