People v. Griffith

Lupiano, J. (dissenting).

Defendant, charged with criminal possession of a weapon in the third degree, pleaded guilty to attempted criminal possession of a weapon in the third degree, a class E felony, after his motion to suppress the weapon was denied. On appeal, defendant contends that his motion to suppress should have been granted.

At the suppression hearing, the police testimony is as follows: At approximately 4:40 a.m., uniformed Police Officer Crowe, while operating an unmarked vehicle in the vicinity of the Lugus Bar (201 West 144th Street, Manhattan) and accompanied on robbery patrol by Officer Bartlett, observed the defendant and two other males approaching the bar. From a distance of some 50 to 60 feet, Officer Crowe saw one of the males, not the defendant, carrying a paper bag 18 inches long. The area was well lighted. A black pipe protruded two to four inches from the top of the bag. It appeared to Officer Crowe that the man was carrying the bag in a suspicious manner, to wit, he held the neck of the object with his left hand and cradled the bag itself with his right hand. A 14-year veteran of the police force who had received weapons training in the Armed Services, Officer Crowe had made over 100 arrests for the possession of weapons, some 30 of which involved the possession of a shotgun or rifle. Having theretofore observed weapons carried in the manner that one of the men was carrying the bag and its contents, having observed the pipe protruding from the bag, and on the basis of his prior experience and expertise, Officer Crowe believed that the male was carrying a shotgun or rifle. Parenthetically, Officer Crowe *144stated that he also believed that a robbery might be about to occur. In the week to 10 days prior to this incident, three armed males had held up the Blue Angel Bar, which was two blocks from the Lugus Bar. The Angel Bar robbery had occurred at closing time, the time of Officer Crowe’s present observations. Officer Crowe also testified that Mike’s Bar at 143rd Street and Seventh Avenue, across the street from the Lugus Bar, had recently been held up in the same manner as the Blue Angel Bar. When the unmarked police vehicle was some 50 feet away, the three men saw the uniformed officers, said something to each other and fled. As the three men ran around the corner, the police briefly lost sight of them and radioed for assistance. Proceeding in the car around the corner, the police observed two of the three men. One of the men was trying to get into the door of a store. The defendant was crouching against a gate. The third man with the bag had disappeared. With his weapon drawn, Officer Crowe exited the vehicle, approached the defendant and told him to freeze. After frisking defendant and removing a revolver from defendant’s right coat pocket, the police officer placed defendant under arrest. Defendant then picked a glass up off the ground and drank from it, with the announcement, "I’m finishing my drink.” Officer Crowe declared that he never saw the three men leave the Lugus Bar, that they were approaching the bar when first observed, and that defendant had nothing in his hand.

Bertram Laurie testified for the defense that he, defendant and one Miller left the Lugus Bar after 4:00 a.m. Defendant was carrying a drink in his hand and Miller had a flat brown paper bag from which no object protruded. As they rounded a corner, Miller entered a building and disappeared. After Miller disappeared, the police officers ordered Laurie and defendant to halt, and the frisk and arrest of defendant followed.

Patently, the issue of credibility of the police officer’s account and that of defense witness Laurie was for the Justice presiding at the suppression hearing to determine. This court confronted by the cold printed word of the record does not share the benefit of personal observation of the witnesses obtained by the Justice at the hearing and the other advantages to be derived therefrom. We may not substitute our feelings and views on credibility unless it may be concluded that the finding as to credibility could not be reasonably *145arrived at. The issue of credibility is ordinarily for the trier of facts, and this rule must give way when the testimony is viewed on appeal as incredible as a matter of law. On this record it may not be concluded that the testimony of Officer Crowe is incredible as a matter of law. Beyond cavil, the Justice presiding over the suppression hearing is in the best position to determine credibility and his findings should be given the greatest weight (see Bielawski v Bazar, 47 AD2d 435). The narrative of the police at the suppression hearing is not inherently unreasonable or suspect. Indeed, the full disclosure by Officer Crowe on the People’s presentation respecting the occurrence of defendant, after his arrest picking a glass up from the ground and drinking from it, an action which might lend credence to the version of the incident later narrated by the defense witness, is indicative of good faith.

It is aptly noted in People v Johnson (30 NY2d 929, 930): "Absent an articulate foundation for the entrenchment upon individual liberty and privacy which a stop and frisk entails, police suspicions remain merely 'hunches’ and are not reasonable within [CPL § 140.50].” However, in the instant matter an articulate foundation for the police conduct was presented. The police activity had the inception in the actions of the three males and Officer Crowe’s belief that one of the men was carrying a shotgun or rifle. While the officers were still in the car, which was about 50 feet away, defendant and his companions, upon apprehending the presence of the police, immediately took flight. Patently, under those circumstances the police would be remiss in not undertaking further investigation. The following observations by the Court of Appeals in People v Rivera (14 NY2d 441, 444-447) are most pertinent:

"The first problem is the authority of the police in the circumstances shown here to stop and question defendant. The validity of subsequent police action would in turn necessarily rest on the initial right to make the immediate and summary street inquiry.
"The authority of the police to stop defendant and question him in the circumstances shown is perfectly clear. 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; if they were to be *146denied the right of such summary inquiry, a normal power and a necessary duty would be closed off.
"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 then the ground for an arrest for a crime known to have been committed * * *
"Therefore, the facts developed in the record, e.g., the incidence of crime in the neighborhood, the peculiar approaches of defendant and his companion to the grill, the rapid leaving when the police were seen * * * all justified the police stopping defendant and questioning him.
"Indeed, the right of the police to stop and question the defendant in such circumstances as those disclosed by this record was recognized at common law. It is extensively treated both by statute and by judicial decision as a reasonable and necessary police authority for the prevention of crime and the preservation of public order [citations].
"If we recognize the authority of the police to stop a person and inquire concerning unusual street events we are required to recognize the hazards involved in this kind of public duty. The answer to the question propounded by the policeman may be a bullet; in any case the exposure to danger could be very great. We think the frisk is a reasonable and constitutionally permissible precaution to minimize that danger. We ought not, in deciding what is reasonable, close our eyes to the actualities of street dangers in performing this kind of public duty * * *
"From the time the policeman, in the process of frisking defendant, touched the object, inferred by him correctly to be a gun, there was probable cause to arrest defendant and to proceed at once further to invade his clothing and take the gun.”

Once the police officer saw defendant and his companions take flight upon their seeing the officer, he was certainly entitled to pursue them. (People v Dread, 49 AD2d 401, 405; People v Archiopoli, 39 AD2d 748.) The precipitate action of defendant and his companions, coupled with the surrounding circumstances, present a reasonable and articulate foundation for the police conduct at issue (see People v Moore, 32 NY2d 67, 70).

*147Officer Crowe in pursuit of the three fleeing men with his bother officer, upon finally catching up with two of them, one of whom was defendant, emerged from the police vehicle with gun drawn. It should be noted that the officers in pursuit lost sight of the three men for an intervening period and that they believed one of the men to be armed with a shotgun or rifle. Upon approaching the two who had stopped, the officers reasonably operated under the apprehension that the third suspect who had disappeared from their view, or perhaps one of the .two men whom they now confronted, would meet any inquiry with a bullet. The dynamics of this street encounter between the police and these three citizens reflect a degree of belief possessed at the point of inception which by virtue of flight and other concomitant circumstances authorized and indeed mandated the police conduct herein. There is no dispute between the People and the defendant that the third man, the man with the bag, had disappeared immediately after the three in haste had momentarily escaped the direct observation of the police. The police officer, responding to the exigencies of a chance street encounter and relying on his training and expertise in fulfillment of the grave responsibilities of his office, is required to act in a reasoned manner in accord with ordinary human nature. Truth has often been said to be stranger than fiction. The commonsense experience of life conjointly with a reasoned reflection and an awareness of the limitations of ordinary human nature dictate that the police conduct on this record was proper. The motion to suppress was properly denied.

Accordingly, the judgment of the Supreme Court, New York County (Lang, J.), convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, should be affirmed.

Silverman and Sullivan, JJ., concur with Murphy, P. J.; Lupiano and Birns, JJ., dissent in an opinion by Lupiano, J.

Judgment, Supreme Court, New York County, rendered on September 10, 1976, reversed, on the law, the plea vacated, the motion to suppress granted and the indictment dismissed.