People v. Otty

223 A.D.2d 364, 636 N.Y.S.2d 1004, 1996 N.Y. App. Div. LEXIS 55

Opinion

Order, Supreme Court, Bronx County (Frank Torres, J.), entered March 24, 1994, which granted defendant’s motion to suppress a gun, unanimously affirmed.

The frisk of defendant was not supported by a reasonable belief, based on specific and articulable facts, that defendant had committed or was about to commit a crime nor that he was armed and presently dangerous. Defendant’s "mere propinquity to others independently suspected of criminal activity d[id] not, without more, give rise to probable cause to search [him]” (Ybarra v Illinois, 444 US 85, 91; Matter of Nelson S., 196 AD2d 422, 424-425). Thus, there was no legal basis for the frisk and the hearing court properly suppressed the gun recovered from defendant. Concur—Murphy, P. J., Wallach, Kupferman, Ross and Williams, JJ.