People v. Stone

OPINION OF THE COURT

Lupiano, J.

On the afternoon of March 22, 1979, uniformed officers Smith, Leonard and two others were on radio motor patrol. The officers were members of the 28th Precinct task force, whose purpose is to patrol narcotics-prone areas within the precinct, known as “special condition areas”, to disburse crowds that formed to buy and sell drugs. At approximately 3:45 p.m., while patrolling such an area, the police *348observed a crowd of about 15 people gathered near the corner of 116th Street and St. Nicholas Avenue. Pedestrians were forced onto the street in order to pass. The defendant was with another man who frequented that location. They were standing amongst the crowd. The police told everyone to leave the area. Some 25 minutes later the police returned. The defendant and his companion were still there, as were a number of other people. The police again told the crowd to disperse and warned that anyone remaining in the area would subsequently be required to produce identification showing that they lived in the vicinity. Approximately 45 minutes later the police again returned to this location and found the defendant and his companion still there amongst a group of people. Officers Smith and Leonard approached defendant and his companion and requested identification, admonishing them that failure to produce suitable identification would result in disorderly conduct summonses (Penal Law, § 240.20, subd 6). Defendant’s companion produced identification from a back pocket of his trousers.

When Officer Smith made the same request of defendant, the latter started to reach into the left pocket of his jacket. As he moved his hand to do so, Smith observed a bulge in that pocket. Fearing what was in the pocket, the police officer placed both his hands on the outside of defendant’s jacket, over the pocket and through the jacket’s outer lining grasped the defendant’s hand and the object contained therein. The feel of the object alerted the officer to the fact that the object was a gun. Smith shouted to his fellow officers that the defendant had a gun and directed defendant to remove his hand from the pocket slowly. The defendant complied, and the officer reached into the pocket and withdrew a loaded .22 semiautomatic pistol. The defendant was then placed under arrest and frisked for other weapons. A subsequent search at the police precinct disclosed that defendant possessed 17 glassine envelopes containing heroin.

The police conduct in this street encounter was reasonable and not overly intrusive. The sequence of events must be “viewed in its entirety as a dynamic encounter where compelling considerations are cast in competing roles *349* * * Our task then is to balance the defendant’s right to be free from arbitrary searches and seizures with the enforcement duties of police officers. In considering whether the conduct of [the police] was justified, the standard to be utilized is reasonable suspicion and not absolute certainty * * * ‘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.’ (Terry v Ohio, 392 US 1, 27.) * * * Here, as in all stop-and-frisk cases, the standard to be applied is not probable cause, but rather reasonable suspicion. Certainty is not required (People v Chestnut [51 NY2d 14]; CPL 140.50, subd 3). To require more than ‘reasonable suspicion’ in a stop-and-frisk case is to require ‘that a police officer [must] await the glint of steel before he can act to preserve his safety’ (People v Benjamin [51 NY2d 267,] 271). The courts should reject such an absurd notion. The police officer is not an actor in a Hollywood scenario, where the quick draw of the gun provides exciting entertainment for the viewers. Rather, the police officer is experiencing the dangers of the real world where the Marquis of Queensberry rules do not apply” (People v Rivera, 78 AD2d 327, 329-331, app dsmd 54 NY2d 1021).

Confronted by the reality of the pervasiveness of drug dealing and the use of handguns, Officer Smith, a streetwise policeman, took a minimally intrusive course in light of the surrounding circumstances consonant with the protection of life and respect for human dignity (see People v Samuels, 68 AD2d 663, affd 50 NY2d 1035). Patently, Officer Smith’s action, in that split second when he saw the bulge and defendant’s reaching into the pocket containing such bulge, was reasonable. The limited pat-down was undertaken, not to discover evidence of a crime, but to enable the officer to pursue his investigation without fear of violence (see People v Stroller, 42 NY2d 1052, 1053; Adams v Williams, 407 US 143, 145-146). As aptly noted by the Court of Appeals in People v Castro (53 NY2d 1046, 1048): “The police had reasonable suspicion to warrant the stop which was reasonably related in scope and intensity to the circumstances surrounding the encounter. Based on *350reasonable suspicion, the police were entitled to neutralize defendant for their own protection as well as that of bystanders (People v Chestnut, 51 NY2d 14).” Officer Smith testified that because in his previous encounters, defendants had reached into their hip pockets for wallets containing identification, he was afraid of what defendant was reaching for in his jacket pocket. The officer was justified in fearing that any further request for information (e.g., do you have a gun in your jacket pocket?) might well be answered by a bullet. Thus, the limited intrusion of seizing defendant’s hand through the jacket served to maintain the status quo (see People v Grant, 83 AD2d 277, 279). It would be unrealistic to require Officer Smith to assume that the defendant’s conduct was completely innocuous or innocent under all the circumstances. “It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety” (People v Benjamin, 51 NY2d 267, 271, supra). Indeed, in People v Benjamin (supra, p 271) it was observed that an “officer * * * rightfully and dutifully on the scene * * *. could not ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts * * * More importantly, there certainly is no justification for holding that an officer in such a situation cannot take note of a significant occurrence indicating a possible threat to his life”.

Accordingly, the judgment, Supreme Court, New York County (Haft, J.), rendered August 5, 1980, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree and attempted criminal possession of a weapon in the third degree, should be affirmed.