I dissent for the reasons stated by the trial court in its memorandum decision. That court did not find “that the People were required to prove that the detective had probable cause for his touching the outside of defendant’s pocket.” Its written decision states quite clearly, “The actions of the defendant just prior to and during the conversation did not raise the detective’s hunch to a level of suspicion sufficient to justify the seizure of the defendant’s pocket. The tenor of the conversation between the detective and defendant did not bespeak an ominous or dangerous situation for the officer. There was no outline of a gun visible or any immediate threat to the officer’s safety”. (Emphasis added.)
While it is correct that the court, during colloquy with counsel, indicated that its “instinct” was that the quality of the evidence did not. rise to the level of establishing probable cause, that comment did not form part of its ruling. It then reserved decision to permit counsel time to prepare written memoranda and subsequently issued the written decision referred to above.
The precinct had received an anonymous phone call that a gang fight was supposed to occur in that area that night. As Officer Sanchez (the sole witness on the hearing of the motion to suppress evidence) approached, he noted that the defendant was wearing a light, waist length, cotton jacket, which was open.
*333“I stopped. We double parked next to the car that he was sitting on. I called over to him. He acknowledged. He started walking towards me. When he started walking towards me, he continued, he continued having his hand in his right hand pocket. As he is coming towards me, I asked him, ‘Hey man, why don’t you get your hand out of your pocket? You getting me nervous’, and he complied. As he complied, he turned his body to his right side and came over to the car door, and he squatted down next to the car door * * *
“A. I noticed the right side of his jacket was falling down. It was weighted, heavily weighted as he turned down, as he squatted down. I also noticed that his right, the right side of the jacket was pulling down from an obvious weight on his right side, his right coat pocket.
“Q. And did you see the outline of a gun?
“A. No, I did not* * *
“Q. All right. Now when he turned to his side and squatted down, what occurred next?
“A. We had a conversation. He told me that he was there trying to get the kids off the block; that they were expecting trouble from kids from 180th Street. The kids were supposed to have a lot of guns; that he had tried to set up some kind of a meeting with the kids on 183rd Street but it backfired, it had been a trap. Some of the kids gotten hurt and, his testimony, he was telling me that the only thing he wanted to do [w] as to make sure there was no trouble that night and get the kids out of the area * * *
“A. He also told me if I wanted to get any of those guys all I had to do go up to 183rd Street and look for those type of guys because they were supposed to have some kind of shirts and more than likely they would have guns on them.
“So at that point I asked him ‘What about you?’ and I reached outside the car window, grabbed his right side and I felt the gun * * *
“Q. What happened after you felt what you believed to be " a gun?
“A. I held on to him. I grabbed, I grabbed the gun with my left side—with my left hand and I grabbed him by the *334shoulder. My partner was already out of the car. He went around him and we placed handcuffs on him.
“Q. And at what point had your partner gotten out of the car?
“A. During the conversation. As a matter of fact when I said to him 'What about you’, he was already out of the car.” (Emphasis supplied.)
On the basis of this testimony, the conclusions of Trial Term appear correct. The order granting defendant’s motion to suppress should be affirmed.
Sullivan, J. P., Markewich and Lupiano, JJ., concur with Ross, J.; Carro, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on November 7,1979, reversed on the law and on the facts, and the motion to suppress denied.