I would reverse the conviction. In my opinion, the physical evidence should have been suppressed.
This is an appeal from a judgment entered on April 22, 1980, in the Supreme Court, New York County (Leff, J., at the pretrial hearing; Greenfield, J., at trial) convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him as a second felony offender to imprisonment for a period of from two and one-half to five years.
Defendant’s conviction arose out of his arrest on August 4, 1979 for possession of a loaded .22 calibre pistol. According to the testimony of the arresting officer at the pretrial hearing, he and his partner were on patrol at or about midnight in their police car when they received a radio transmission that there was a man on Amsterdam Avenue between 95th and 96th Streets reportedly carrying a gun wrapped in a white shirt. The man was described as being Hispanic with an Afro hairstyle, 5 foot, 10 inches tall and wearing light blue pants and a light colored T-shirt.
Defendant was observed walking south on Amsterdam Avenue between 96th and 95th Streets. Although there were other people on the street, none of them purportedly resembled the description or was carrying a white shirt, except for the defendant, who did have such a shirt in his hand. He was, however, approximately 5 feet, 6 inches in height, had wavy hair and was wearing a short sleeved, light colored banlon shirt with a collar.
*423The arresting officer further stated that he followed the defendant to a building on 95th Street between Amsterdam and Broadway. The defendant appeared to be about to enter, his left hand extended in the direction of the exterior door, his body bent at the waist and knees and his right hand downward towards the ground. The officer, in uniform, ran up behind him and, without identifying himself, grabbed the hand holding the white shirt and felt a hard object, thereby discovering the gun. His partner, at that exact moment, had a gun placed against the defendant’s head and exclaimed, “Don’t move”.
The radio message, based upon an anonymous 911 call, was admittedly the only information upon which the officers relied to stop the defendant. There was nothing unusual occurring at the scene, nor had they heard of any shooting. In addition, the defendant did not do anything which could be remotely construed as furtive or suspicious.
As a result of these facts, the court at the pretrial hearing determined that the police had acted properly and that the arrest was incident to a lawful seizure.
In People v La Pene (40 NY2d 210) officers on motor patrol had received a radio message, based upon an anonymous tip, that there was a male Negro with a gun in a place called Jean’s Bar and that he was wearing a red shirt. When the police entered the bar, they noticed the defendant, who was dressed in a red shirt, standing in the back of the establishment with his hands in his pocket and apparently engaged in conversation with some other patrons. Without attempting to verify or substantiate their information, the officers ordered the defendant to “freeze”. They then proceeded to frisk him, recovering a pistol containing seven live rounds.
Holding that the intrusion involved was unreasonable, the Court of Appeals referred to the absence of any furtive or suspicious conduct on the part of the defendant or of any indication, such as a bulge, that he was armed. The court stated that the People could not rely solely on an anonymous phone call to furnish sufficient cause to support the police action. The information in question had not only . been supplied by a person whose identity was unknown, *424the court asserted, but it was also communicated by a nonpersonal medium. “Tips of this nature are of the weakest sort since no one can be held accountable if the information is in fact false” (People v La Pene, supra, at p 224). Distinguishing between a report that a person has a gun in his possession and another account containing the additional fact that the weapon has just been used in connection with the commission of a crime, the court declared that a tip about an individual with a gun will not, by itself, authorize the sort of police activity that occurred there.
In People v Stewart (41 NY2d 65) the arresting officer testified to a radio message concerning a Negro male with a gun, wearing a long green coat, who was in front of a given location. The defendant, dressed in a long green coat, was found at the stated address in the company of four or five other men. When the officer called for the defendant to stop, he approached the police while the other persons continued walking. According to the officer, the defendant’s coat was unbuttoned, and he was able to spot a bulge in the left front trouser pocket which could not be identified as a gun and, in fact, was not a weapon. However, without further inquiry, the officer conducted a further frisk which revealed eight .38 calibre bullets and a loaded revolver.
The court, in reversing the conviction, pointed out that “where an anonymous phone tip giving a general description and location of a ‘man with a gun’ is the sole predicate, it will generate only a belief that criminal activity is afoot * * * That type of information will not of itself constitute reasonable suspicion thereby warranting a stop and frisk of anyone who happens to fit that description * * * In that situation, the police have only the common-law power to inquire for purposes of maintaining the status quo until additional information can be acquired” (People v Stewart, supra, at p 69).
Similarly, in People v Benjamin (51 NY2d 267, 270), the Court of Appeals noted that “an anonymous tip of ‘men with guns’, standing alone, does not justify intrusive police action, and certainly does not rise to the level of reasonable suspicion warranting a stop and frisk”. Although the court sustained the pat-down search which had taken place in *425Benjamin, it noted that it was the personal observations by the police of the defendant’s stepping back while reaching with both hands to the rear of his waistband, where a weapon might be concealed, together with the information furnished in the radio run, which provided the reasonable suspicion necessary to support the limited intrusion which produced the loaded revolver.
In the instant case, the radio transmission which the officers received was not only derived from an anonymous source, but was incorrect in all material respects, except for the defendant’s having a white shirt in his hand. The physical description supplied in the message did not conform to that of defendant, nor was he wearing the type of clothes mentioned. In effect, the only valid information which the police possessed was that of a man on Amsterdam Avenue between 95th and 96th Streets, carrying a gun wrapped in a white shirt. There was no report of any crime having been perpetrated with the gun, no sign of unusual activity in the area, and no menacing movements on the defendant’s part. The defendant’s behavior was, if anything, indicative of a possible attempt to discard the shirt containing the gun by laying it on the ground, contrary to the situation existing in People v Benjamin (supra) where the officers could realistically perceive themselves to be in imminent danger. Yet, the police here made no effort to investigate further; one officer simply grabbed the hand holding the shirt, while the other placed a revolver to the defendant’s head. Under such circumstances, the police intrusion was excessive and, in fact, the defendant was placed under arrest for merely holding a white shirt. Moreover, there was not even a basis for the reasonable suspicion required to justify a stop and frisk.
In those cases in which limited searches have been upheld, the description contained in the radio run was either precise or there was present some other factor, totally lacking here, to support the police conduct. (See People v McLaurin, 43 NY2d 902; People v Kinlock, 43 NY2d 832; People v Stroller, 42 NY2d 1052; and People v Williams, 41 NY2d 65.) Consequently, the motion to suppress the physical evidence should have been granted.
*426Although the arrest was, in my opinion, defective, and it is therefore unnecessary to decide whether, as defendant alleges, the Judge below committed reversible error, in refusing to admit at trial the contents of the radio message, I believe that this issue merits a brief discussion. The defense contention was that the police found the gun on the sidewalk and not in the defendant’s hand, as the officers claimed, and arrested him only because he was the nearest person with a superficial resemblance to the individual who they were seeking. Thus, the question of defendant’s identity was crucial, and proof of the description provided to the police was relevant to a consideration of this issue. That being the situation, defendant asserts, the evidence was exculpatory and should have been allowed under either the “state of mind” or “res gestae” exception to the hearsay rule.
I agree that evidence of the description given to the police should have been admitted. The defense case was severely hampered by its inability to demonstrate the disparity between the physical characteristics and clothing attributed to the “man with a gun” in the radio transmission and that of the defendant. At trial, the court concluded that the information supplied through the radio run was hearsay, that the informant was unknown and, consequently, that the source and reliability of the facts contained therein was uncertain. However, this very same unreliable information, obtained from an undetermined source, had, without more, previously been held sufficient to authorize the police intrusion.
In my view, while the evidence in question may not fall squarely within a hearsay exception, the rule should be relaxed under modern trends. The information sought is exculpatory, was not generated by the defendant or anyone who had a motive to assist him and has probative value for the purpose offered. Of course, the weight to be given to this evidence is a matter for the jury to assess. Consequently, the court was in error in excluding testimony as to the description provided in the radio transmission.
Kupferman, J. P., and Sullivan, J., concur with Ross, J.; Fein and Milonas, JJ., dissent in an opinion by Milo-NAS, J.
*427Judgment, Supreme Court, New York County, rendered on April 22, 1980, affirmed.