(dissenting). This is an appeal from a judgment convicting defendant of attempted criminal possession of a weapon in the third degree in violation of Penal Law §§ 110.00 and 265.02 (4). The defendant pleaded guilty following the denial of his motion to suppress.
The only issues on this appeal are whether the police had a right to approach the defendant and to frisk him. Because I believe that the police conduct was proper, I would affirm the judgment. At the suppression hearing, the only testimony was by the two police officers who were involved in the arrest of the defendant, Joseph Thomas and Jerome Canzaneri. The record supports the findings of fact made by the trial court. They are as follows:
"Shortly before 10:00 on November 4, 1985, Police Officer Thomas and Police Officer Canzaneri both in uniform in a parked police car, observed the defendant in front of the subway entrance located on the northeast corner of 116th Street and Lenox Avenue in the County of New York approximately three quarters of a block from them. The area was well lit.
"Police Officer Thomas called his partner’s attention to the defendant. Both police officers watched him for two to three minutes as the defendant looked up and down Lenox Avenue, up and down 116th Street, down the subway stairs and returned to his position near the wall on the corner.
"The defendant put his right hand across his chest to the left side of his jacket as though he were adjusting something inside his jacket, repeated those actions at least twice.
"A bulletin board in the 28th Precinct lists the area at 116th Street and Lenox Avenue as a robbery prone location as well as a burglary/narcotics traffic violation and accident prone location.
"The officers decided to approach the defendant. As they drove towards him, the police officers saw the defendant look in their direction, turn and walk in the opposite direction.
"However, he stopped when Officer Canzaneri shouted, 'Halt, police’ and told the defendant that they wanted to ask him a few questions.
"The defendant raised his hands, turned to face the officers and walked towards them holding his left arm in a rigid position against his left side near his waistband.
"The officers approached the defendant without their guns drawn.
*184"When they were approximately two to five feet from the defendant, Officer Thomas noticed a bulge near the defendant’s left front coat pocket which Officer Thomas believed to be a gun.
"The bulge was above the defendant’s waistband and it was partially covered by his left arm.
"Officer Thomas patted the outside of the defendant’s jacket. He felt the outline of a gun. Officer Thomas then informed Officer Canzaneri that the defendant had a gun at which point Officer Canzaneri drew his gun and placed the defendant against the police car.
"Officer Thomas attempted to retrieve the gun but was unable to do so. He then drew his gun while Officer Canzaneri bolstered his gun and seized the defendant’s gun, ripping the defendant’s inner jacket pocket in the process.
"The defendant was arrested.”
The defendant argues that there was an unconstitutional forcible stop, that the police officers had no basis for a common-law right to inquire and that the frisk was unjustified. The People argue that the police conduct was justified.
The police had a common-law right to inquire about the conduct of the defendant. In People v De Bour (40 NY2d 210, 223 [1976]), the Court of Appeals stated that "the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure”. Here, the police observed the defendant for several minutes and reasonably found that his conduct was suspicious. They had a right to approach the defendant and to inquire. CPL 140.50 (1) states in part that "a police officer may stop a person in a public place * * * when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.” Second, once the police approached the defendant and saw a bulge in an area where a gun would ordinarily be carried, they had the right to frisk him. Thus, CPL 140.50 (3) permits an officer, where he "reasonably suspects that he is in danger of physical injury,” to "search such person for a deadly weapon or any instrument”.
The defendant argues that there was no basis for a frisk *185because the police did not observe that the bulge at the defendant’s side was in the shape of a gun and cites People v Prochilo (41 NY2d 759 [1977]). While it is true that in the two frisks upheld by the Court of Appeals in Prochilo, the police had observed the outline of a gun, the case does not stand for the proposition that no frisk can ever be made unless the police see the outline of a gun. It should be remembered that in Terry v Ohio (392 US 1 [1968]), the case in which the United States Supreme Court upheld the right of the police to stop and frisk a person reasonably suspected of criminal activity, the detective never saw any outline or bulge before he frisked the three individuals. There, the detective had concluded that because of their actions, three men were "casing” a store prior to attempting a robbery. Here, the totality of the circumstances justified the approach of the officers to the defendant and the subsequent frisk.
Murphy, P. J., Ross and Milonas, JJ., concur with Ellerin, J.; Smith, J., dissents in a separate opinion.
Judgment, Supreme Court, New York County, rendered on February 13, 1986, reversed on the law, the defendant’s motion to suppress the evidence granted, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30-day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.