People v. Castro

Judgment, Supreme Court, New York County (Harold Baer, Jr., J., at suppression hearing; Robert M. Haft, J., at plea and sentence), rendered January 13, 1984, which convicted defendant, upon his plea of guilty, of the crime of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [4]), and sentenced him, as a predicate felon, to an indeterminate prison term of from 2 to 4 years, is affirmed.

In the early morning hours of March 7, 1982, New York Police Sergeant Escobar and Police Officers Mancuso and King (King) were on motor patrol in the vicinity of Washington Street in the West Village of Manhattan. These officers were in civilian clothes and were riding in an unmarked vehicle.

Sometime about 12:30 a.m., on Washington and Bethune Streets, the officers arrested three transvestites, who had been loitering there for the purposes of prostitution. Thereafter, these three prisoners were placed into the officers’ car.

Upon the basis of past arrests, the officers knew two of the prisoners, but they had never before seen the third prisoner.

Soon after being taken into custody this previously unknown prisoner turned informant, and told the officers, in pertinent part: (1) that across the street there was a Hispanic man with a gun, who was standing with two black men; and, (2) that this Hispanic man "had told [the informant] that he *434was going to rip off a 'queen’ down here that night”. In response to receiving this tip, the officers looked across the street and observed a Hispanic man standing with two black men in front of a cyclone fence. The area was brightly lit and there was barely any pedestrian or vehicular traffic.

At this point, the officers immediately crossed the street to investigate. As a result of the officers’ action, the three prisoners, including the informant, were left unguarded in the police vehicle.

When the officers arrived on the other side of the street, they first identified themselves, as police officers, to the three men in question, and then ordered those men to put their hands up against the fence, mentioned supra, so that the officers could conduct a pat-down search. During the course of that search, Officer King found a loaded .22 caliber automatic weapon in the waistband of the defendant, who was the Hispanic man who had previously been identified by the informant as the man with the gun. After this weapon was found, the defendant was arrested.

Following defendant’s arrest, the officers returned to their car, and found only two prisoners there since the informant had fled. Although the police made efforts to track down this informant, all of their efforts were unsuccessful.

Subsequent to defendant’s indictment for the crime of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), he moved to suppress the weapon. This motion resulted in a suppression hearing. The single witness at that hearing was Officer King, who was a veteran of 15 years service in the Police Department, of which 14 of those years had been spent assigned to the sixth precinct, whose area of responsibility encompassed the location where defendant was arrested.

In pertinent part, King testified: that neither he nor his fellow officers had obtained the informant’s name before he escaped; that the two remaining prisoners, when questioned about the identity of the informant, denied knowing anything about him; that, prior to leaving to investigate the subject tip, the officers "told [the three prisoners] to stay where they were [in the back of the police vehicle]”; that all of the officers went to investigate, since, as mentioned supra, there were two other men with the defendant; and, that the officers took the tip seriously, in view of "the way [the informant] said it * * * [T]he way he came out with it, it seemed like it was good information” (material in brackets added).

*435The suppression court denied the defendant’s motion, since it found that the evidence adduced before it justified the pat-down search that produced the gun.

We agree.

Unlike any anonymous faceless telephone tipster, the instant informant communicated his tip in a face-to-face meeting with experienced officers like King, who had an opportunity to evaluate his reliability "on the basis of appearance and demeanor, factors crucial to any such assessment” (People v Bruce, 78 AD2d 169, 173). Another indication of this informant’s reliability is found in the fact that "[wjhere * * * [an informant] asserts to police that an individual is carrying a weapon at a specific time and place, that information may be viewed as circumstantially reliable since, if it proves false, the [informant] himself would be subject to a charge of falsely reporting an incident. (See Penal Law, § 240.50, subd 3, par [b] [other citations omitted]”; People v Earley, 76 AD2d 335, 340 [material in brackets added].)

Since the informant asserted that the defendant had a gun and intended to "rip off a 'queen’ * * * that night,” we find that the officers would have been derelict in their duty if they had not investigated and conducted the pat-down (People v Williams, 52 AD2d 520, affd sub nom. People v Stewart, 41 NY2d 65). We held in People v Bruce (supra, p 175): "[i]n the case of a report that [a] particular [individual is carrying a gun] the danger to society may be great. Thus, prompt police action is compelled. Given this predicate, we should accord the police officers’ assessment of the danger confronting them considerable weight in the determination of whether the intrusion was constitutionally justified” (material in brackets added).

In substance, the dissenter contends that there was no basis to credit the informant’s information. We disagree. The suppression court specifically found both the officer credible and the informant reliable. "Credibility is determined by the trier of facts who has the advantage of observing the witnesses and necessarily is in a superior position with respect to that aspect than an appellate court which reviews but the printed record [citations omitted]”. (People v Wright, 71 AD2d 585, 586.) Moreover, recently the United States Supreme Court in Illinois v Gates (462 US 213, 232), stated: "Informants’ tips * * * come in many shapes and sizes from many different types of persons”. In determining what is reasonable police conduct, we must consider the police officer’s actions "as a whole, *436remembering that reasonableness is the key principle” (People v Chestnut, 51 NY2d 14, 23, cert denied 449 US 1018). Here the officer had a reasonable suspicion that the defendant, the only Hispanic man on the street, had a gun, and appropriately conducted a pat-down. The object of the information, the defendant, was clearly within the view of the officer and the informant, and it was obvious that the description was accurate.

We find the conduct of the police was reasonable, and accordingly, we affirm. Concur—Sandler, Ross, Asch and Ellerin, JJ.