People v. McLaurin

Nunez, J. (dissenting).

"The proper analysis in cases of this nature is to examine the predicate for the police action and then determine whether or not that predicate justified the extent of the official intrusion on the individual.” (People v Stewart and People v Williams, 41 NY2d 65, 66; see, also, People v De Bour and People v La Pene, 40 NY2d 210.) Emergency telephone calls do not lend themselves to evaluation of the informer’s veracity. Yet the police would be remiss in their duties if they failed to investigate a call concerning a gun (People v Williams, 52 AD2d 520, affd 41 NY2d 65). A police officer may act on the strength of a communication from a fellow officer and assume its reliability (Whiteley v Warden, 401 US 560, 568; People v Horowitz, 21 NY2d 55, 60). In this case, responding to the broadcast, the police encounter the defendant who matches the description given: a black man wearing a red jacket and sneakers, and walking with a limp. When the officers arrive, defendant is across the street from the address provided by the caller. As the defendant matches the description provided, the officer may believe the defendant possesses a gun as reported, and that he is in danger. The officer can then make a limited search (People v Taggart, 20 NY2d 335, 337, cf. People v La Pene, supra; but see People v Stroller, 53 AD2d 816) not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence (Sibron v New York, 392 US 40, 63; CPL 140.50, subd 3). Whether or not a search or seizure is to be considered reasonable requires a weighing of the government’s interest against the encroachment upon an individual’s right to privacy and personal security (People v Cantor, 36 NY2d 106, 111). Terry v Ohio (392 US 1, 27) allows "a reasonable search for weapons for the protection of the police officer, where he has reason to believe he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” The encounter occurred near midnight. Darkness prevented the officers from making the observation of a weapon outline which justified the "pat down” in People v Williams (supra). The police acted prudently to insure their own safety.

*85I would affirm the judgment of conviction.

Birns, J., concurs with Lupiano, J.; Murphy, J., concurs in the result only. Kupferman, J. P., and Nunez, J., dissent in an opinion by Nunez, J.

Judgment, Supreme Court, New York County, rendered on December 16, 1975, reversed, on the law, the motion to suppress granted, and the indictment dismissed.