People v. Bezares

Sandler, J. (concurring).

If the facts were as testified to by the arresting officer, I believe that an adequate legal basis would have been presented both for a detentive stop and a frisk of the defendant. Regrettably I am persuaded that the testimony of the arresting officer has every appearance of having been carefully tailored to meet constitutional objections to the action that he took. H The radio run described one of the four Hispanics as wearing a red, white and blue shirt and reported no further description of the others. The defendant wore a blue shirt. I am unable to accept the arresting officer’s testimony that he misheard the radio report and understood that it described the attire of two persons, one with a red and white shirt and the other with a blue shirt, a mishearing all too convenient for the purpose of justifying the action that was taken. 11 In addition, the arresting officer testified that, consistent with the radio run, he observed four Hispanics at the described location, two of whom fled. His brother officer saw only two Hispanics at the described location, both *719of whom, several feet apart, were walking in the direction of the police vehicle. In the absence of any physical circumstance that would explain why the brother officer, presumably also alert to the presence at the location of “four male Hispanics with guns”, failed to observe two fleeing Hispanics, I am unable to accept the testimony of the arresting officer as reliable. H Accordingly, I agree that the judgment of the Supreme Court, Bronx County, rendered March 31,1982, convicting defendant, upon his plea, of criminal possession of a weapon in the third degree, should be reversed, on the law and on the facts, the motion to suppress should be granted, and the indictment should be dismissed.