People v. Rivera

Carro and Wallach, JJ.,

dissent in a memorandum by Carro, J., as follows: The State’s case falls or stands on whether Police Officer Wilfredo Morales’ testimony at the suppression hearing, that he observed the stock of a gun handle protruding from defendant’s waistband before ordering him up against the wall for a frisk, was credible. Based on Morales’ prior testimony before the Grand Jury, his interview with an Assistant District Attorney and the belated correction to his memo book entry on this incident, I conclude that Officer Morales’ credibility on this issue was irreparably damaged and that his testimony at the hearing was "incredible as a matter of law” and " 'patently tailored to nullify constitutional objections.’ ” (People v Quinones, 61 AD2d 765, 766; see also, People v Garafolo, 44 AD2d 86, 88-89; People v Smith, 77 AD2d 544, 546.)

The hearing minutes reveal that on February 9, 1984, in response to a radio run of Hispanic males with a gun arguing in a hallway of 1065 Manor Avenue in The Bronx, Police Officer Morales arrived at the location and saw defendant leaving the building. Morales first saw a side view of defendant from a distance of about 10 feet. Morales asked defendant if he lived in the building and defendant responded that he did not. As defendant faced him, Morales saw "what appeared to be a bulge in his right waistband” but could not tell what the bulge was.

As defendant came closer, Morales saw "the stock of a wooden handle”, drew his revolver, and told defendant to place his hands on the wall. Defendant complied. Morales was

*174then able to see the complete handle of the gun as defendant’s shirt lifted up. Morales removed the gun and arrested defendant.

On cross-examination Morales was confronted with the following account of the arrest he made to the Grand Jury:

"question: Officer Morales, kindly tell the members of the grand jury the circumstances which led to the arrest of Leslie Rivera.
"answer: I was responding to a call in front of the * * * building of a man with a gun, male Hispanic arguing in the hallway. As I approached the building, Leslie came out the door. I noticed a bulge in his waistband. I asked him if he lived there. He told me no. I told him, put your hands against the wall and once I approached him I had the gun drawn. In the front of the waistband the gun * * * butt was sticking out and at that time I removed the gun and put the handcuffs on him.”

Counsel also introduced the report prepared by the investigating Assistant District Attorney, which likewise failed to include the crucial piece of information that Morales saw the gun stock before ordering defendant up against the wall in order to frisk him. Further testimony was elicited that after having made his notations in his memo book concerning the arrest, Morales later inserted above the line where he wrote that he ordered defendant up against the wall, the words "observed gun butt, as defendant got closer.”

The hearing court concluded that the officer’s testimony that he observed the stock of the gun before ordering defendant up against the wall was credible and furnished the probable cause necessary to arrest and frisk defendant. The court concluded that the absence of this observation from the officer’s account to the Grand Jury was a product of the fact that "by the nature of questions asked by the Assistant District Attorney in the speed of the day, officers not overly experienced as this officer * * * being on the force for three years and having had goodly education, so to speak, in the drug area, may not have had, apparently * * * did not seem to be overly knowledgeable so that he would be looking carefully as to the words that he used to make out probable cause.” As to the memo book entry, the court opined that "when he made this entry he did not give the consideration of the technicality that counsel laid great weight on.” The court then blamed the omission of the statement from the investigating District Attorney’s report on the "negligence” of the *175District Attorney’s staff who are "in such a rush to get the basic background * * * that if they paid attention to the law in making this memo and gave this some thought, they may have dug deeper to find out specifically.”

Although issues of credibility are primarily for the trial court, reversal is warranted when the trial court’s fact findings are unjustified by the evidence. (People v Garafolo, supra.) What makes the officer’s testimony concerning his observation of the gun stock before deciding to frisk defendant so incredible is the conspicuous absence of that important detail in his earlier accounts to the Grand Jury and the investigating Assistant District Attorney and the belated addition of that fact to his memo book. The court’s reliance on the officer’s lack of experience as an explanation for the glaring omission of this fact is unavailing. The hearing court opined that this officer, who had been on the force for three years, was perhaps unknowledgeable as to the words he should have used "to make out probable cause.” However, the omission here was not in the failure to provide some kind of technical characterization of the defendant’s behavior, but an omission of a fact that either occurred or did not occur, and which if it occurred would definitely have left a marked impression on the officer.

The difference to an officer of an indescribable bulge and the stock of a gun is substantial. Since it would provide the actual and only reason for the arrest, under these facts, it is not likely to be a detail that any officer would forget to include in his memo book when he first writes up his account of the arrest. Nor is it a detail that he would forget to tell an Assistant District Attorney. What is more credible and, in fact, supported by a reading of Morales’ Grand Jury testimony, is that Morales did not see the gun stock until after he told defendant to put his arms up against the wall, which caused defendant’s shirt to rise up and reveal the secreted gun. Common sense would also dictate that a person would not walk right up to a police officer with the stock of a gun visibly present. In combination, the belated addition to the memo book of this observation and its omissions in the Grand Jury testimony and the interview with the Assistant District Attorney all point very clearly to the fact that the officer’s hearing testimony was patently tailored to provide a pretext for the otherwise impermissible search and seizure of defendant.

In fact, contrary to the majority’s assertion that I have engaged in speculations as to the absence of this detail in the Grand Jury minutes and the interview with the Assistant *176District Attorney, it is the hearing court which determined the officer’s credibility based on unsupported speculations it made as to the negligence and carelessness of the District Attorney’s office and the supposed inexperience of Officer Morales. I have based my conclusion instead on the conspicuous absence of this critical detail.

The frisk of defendant could only have been upheld if Morales had first seen the gun or evidence of the gun as opposed to an unspecified bulge. Because I conclude that the gun was not observed until after Morales ordered defendant up against the wall, this search was improper. When a police officer entertains a reasonable suspicion that a person has committed, is committing or is about to commit a crime he may seize that person temporarily for questioning and frisk him if the officer reasonably suspects that he is in danger of physical injury from this person. (People v De Bour, 40 NY2d 210, 223.) A reasonable belief that a person has a gun in his possession requires "proof of a describable object or of describable conduct that provides a reasonable basis for the police officer’s belief’. (People v Prochilo, 41 NY2d 759, 761.)

When Morales saw defendant leaving the building, defendant was not behaving suspiciously or making any furtive gestures. Morales had received an anonymous tip of Hispanics with guns at this building, but no descriptions were provided and defendant was seen alone. Morales noticed a bulge at defendant’s waistband but could not tell what it was. Under these circumstances there was not sufficient evidence from which the presence of a gun could with reasonable certitude be inferred. (See, People v Goings [reported with People v Prochilo, supra], 41 NY2d, at p 763.)

Accordingly, I would suppress the gun, vacate this conviction and dismiss the indictment.