People v. Coles

Capozzoli, J. (dissenting).

"The business of the police is to prevent crime if they can. Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of large urban communities. It is a prime function of city police to be alert to things going wrong in the streets * * *.

"And the evidence needed to make the inquiry is not of the same degree or conclusiveness as that required for an arrest. The stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less incriminating than the ground for an arrest for a crime known to have been committed.” (People v Rivera, 14 NY2d 441, 444, 445.)

The last-cited case also held that the right to "frisk” is justified as an incident to such questioning upon grounds of safety and precaution which might not, in the first instance, justify a regular search.

In the case at bar it must be emphasized that, when defendant was spotted on the second floor of the hotel by the police and the hotel manager, he asserted that he lived at the hotel. The hotel manager immediately told the police that the defendant’s statement was not true and that he did not live in the hotel. It seems to me that the police were then justified in inquiring further, but before doing so they decided to frisk the defendant. Otherwise, as was said in People v Rivera (supra, p 446): "The answer to the question propounded by the policeman may be a bullet”.

The fact that, on the day after the arrest, the manager may have confirmed appellant’s claim that a woman, who had rented the room by herself, and he lived in that room, cannot in any way affect the propriety of the action taken by the police on the previous day.

As was stated in People v Moore (32 NY2d 67, 69): "In the final analysis, the test is whether the facts available to the officer at the moment of the seizure would warrant a person of *349reasonable caution in believing that the action taken was appropriate. [Citing cases.]”.

Accordingly, the propriety of the police action must be measured in the light of the facts as they were known to the police at the time they frisked the defendant.

I am satisfied, after a thorough review of this record, that the behavior of the police, from the time they first observed the defendant and up to his arrest on the second floor of the hotel, was in the highest and best tradition of crime prevention, at the same time doing no violence to defendant’s constitutional rights.

For the reasons given, I dissent from the conclusion reached by the majority and vote to affirm.

Stevens, P. J., and Tilzer, J., concur with Murphy, J.; Capozzoli, J., dissents in an opinion in which Kupferman, J., concurs.

Judgment, Supreme Court, New York County, rendered November 27, 1973, reversed, on the law, and vacated, the order of said court entered on October 2, 1973 denying defendant’s suppression motion, reversed, on the law, and granted, and the indictment dismissed.