People v. Lewis

49 A.D.2d 558, 372 N.Y.S.2d 215, 1975 N.Y. App. Div. LEXIS 10393

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1975
• Status: Published

Opinion

Judgment, Supreme Court, New York County, rendered February 27, 1973, convicting the defendant on his plea of guilty of possession of a weapon as a felony, unanimously reversed, on the law, and the motion to suppress certain physical evidence of the revolver granted, and the indictment dismissed. At the suppression hearing, the police officer testified that he and two partners in uniform in a patrol car, were cruising in a "very high crime area” on Lenox Avenue in Manhattan. The patrol car came to a halt in front of a bar and grill, and when the defendant saw the patrol car, he walked away looking back at the car. The police officer exited the automobile and approached the defendant, noticed a bulge in his waistband under his shirt and touched it, feeling what the police officer believed to be a gun. He then lifted the defendant’s shirt and removed a .22 caliber loaded revolver and placed the defendant under arrest. "We find that the frisk was unlawful, there being no reasonable basis to suspect that defendant was committing, had committed or was about to commit a crime. (CPL 140.50; Sibron v New York, 392 US 40; Terry v Ohio, 390 US 1.)” (People v Batino, 48 AD2d 619.) Concur—Stevens, P. J., Kupferman, Tilzer, Capozzoli and Lane, JJ.