People v. Beltre

179 A.D.2d 353, 577 N.Y.S.2d 829, 1992 N.Y. App. Div. LEXIS 62

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1992
• Status: Published

Opinion

Defendant’s motion to suppress was properly denied. The officers were responding to one of a number of reports of an assault in progress, and a person whose description matched that of the defendant possessed the gun that was mentioned in the reports. When encountered by the police, defendant was wearing a shirt like the one described in the reports and carrying a small ax. Under these circumstances, the patdown that the officers conducted was permissible to insure their safety. (People v McLaurin, 43 NY2d 902, revg on dissenting opn 56 AD2d 80; People v Sustr, 73 AD2d 582.)

Defendant was not deprived of a fair hearing because of the failure of the police to preserve the ax, which disappeared in the melee, the loss of this evidence being a matter that was necessarily considered by the hearing court in assessing the credibility of the police officer who testified. Concur — Ellerin, J. P., Kupferman, Ross and Smith, JJ.