Judges： Sandler, Silverman
Filed Date： 7/19/1984
Status： Precedential
Modified Date： 10/28/2024
— Judgment of Supreme Court, Bronx County, entered on March 31, 1982 (William Holland, J., at plea and sentence; Ivan Warner, J., at suppression hearing), convicting defendant, upon his plea, of criminal possession of a weapon in the third degree, is reversed, on the law and on the facts, the motion to suppress granted and the indictment dismissed. 11 We conclude on this record that the finding by the hearing court, that the police conduct in this street encounter that resulted in the arrest of the defendant and his later conviction by plea of criminal possession of a weapon in the third degree was reasonable and that suppression should be denied, is contrary to the weight of the credible evidence. We recognize and acknowledge the rule that issues of credibility are primarily for the trial or hearing court, whose determination is entitled to great weight, but we also recognize and acknowledge that “reversal is warranted where the fact findings of the trial court are manifestly erroneous or so plainly unjustified by the evidence that the interests, of justice necessitate their nullification [citations omitted]” (People v Garafolo, 44 AD2d 86, 88). 11 Here, the testimony of the arresting detective was, at a minimum, not supported by the testimony of his fellow police officer who was with him throughout, and indeed to some extent, was contradicted by that testimony. The sole witness called by the People was Detective Vassilatos, who testified that while on patrol in an unmarked car and in plain clothes, they received a radio run which reported that there were four male Hispanics with guns in front of 950 Hoe Avenue. Vassilatos testified that the description he heard was of one male wearing a red and white shirt and another male wearing a blue shirt. He said the radio run was “being said fast” and that there was a “lot of excitement over the radio”. He testified that as his car entered the block of 950 Hoe Avenue, he saw four male Hispanics in front of 950 and that two of them “fled” when they saw his car. At least one radio motor patrol car also responded to the radio run. As Vassilatos pulled in front of 950 Hoe Avenue, the other two male Hispanics, one of whom was wearing a blue shirt, started to walk away. The officer testified that he stepped out of the car, showed his shield and ordered the male Hispanic in the blue shirt, the defendant, to turn around with his hands up. He frisked him, “felt what appeared to be a revolver” and pulled a gun from under the defendant’s shirt. Although the officer testified that he “feared for his safety”, he did not draw his gun but assumed that his partner “usually would back [him] up if [he was] searching somebody.” However he was not certain this his partner had drawn his gun. H Detective Vassilatos’ partner, Officer Kalin, was called as a witness by the defendant. He testified that he did not, at any time, see four male Hispanics as their car pulled into Hoe Avenue. He saw two men walking toward the car, some three to four feet apart. He could not tell if they were together. He said that “one had a blue shirt on and dungarees which was part of the description that came over the air from Central”. Officer Kalin remembered that the radio run was “something from Central about a red shirt, a white shirt and four male Hispanics”. He also recalled that part of the description that was received from Central was of a man with a blue shirt. The Sprint report of the radio run was received in evidence. The portion dealing with the description read in part “[c]omplaint says [flour males, Hispanics, one of them is wearing a red, white and blue shirt and jeans. No further description of others.” H Neither officer testified to