People v. Graves

49 A.D.2d 844, 373 N.Y.S.2d 606, 1975 N.Y. App. Div. LEXIS 10988

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 1975
• Status: Published

Opinion

Judgment, Supreme Court, New York County, rendered March 29, 1974 (after denial of a motion to suppress dated November 20, 1973), convicting defendant upon his plea of guilty to the crime of attempted possession of a weapon as a felony, unanimously reversed, on the law, the motion to suppress granted, and the indictment dismissed. The defendant was observed by police officers while he was in an area where narcotics were known to be sold, talking to various people. Later that day he was noticed by these same police officers walking with a girl. Since he was previously seen in a high-crime area, the police had a hunch that he might be a drug buyer or seller and stopped him for questioning. One officer noticed a bulge on the left side of defendant’s pants. The bulge was discovered to be a gun. The officer conceded, however, that the bulge did not reveal the outline of a gun, nor was a portion of the gun (such as the handle) exposed to view. The defendant, though observed for a long period of time prior to arrest, was not seen performing a criminal act or behaving in a suspicious fashion. The appearance of the bulge alone could not provide a reasonable basis for the frisk since the bulge concededly could be equally in consonance with possession of many other items not in the nature of contraband. This case, as conceded by the District Attorney, is governed by our holding in People v Batino (48 AD2d 619) and we have accordingly reversed and dismissed the indictment. Concur—Stevens, P. J., Murphy, Tilzer, Lane and Nunez, JJ.