People v. Parmiter

55 A.D.2d 938, 390 N.Y.S.2d 651, 1977 N.Y. App. Div. LEXIS 10212

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1977
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 15, 1975, convicting him of attempted possession of weapons, etc., as a felony, upon his plea of guilty, and imposing sentence. The appeal also brings up for review the denial of defendant’s motion to suppress physical evidence. Judgment reversed, on the law and the facts, motion granted, and indictment dismissed. On the record before us, we conclude that the arresting officer did not possess sufficient grounds to reasonably suspect that the defendant was committing, had committed, or was about to commit a crime (see People v Cantor, 36 NY2d 106; People v Rivera, 14 NY2d 441). His testimony at the preliminary hearing did not satisfy the well-settled requirements which would justify a "seizure” in a public place (see People v King, 50 AD2d 521; People v Graves, 49 AD2d 844; People v Lewis, 49 AD2d 558; see, also, People v Cantor, supra), and the addition to that testimony at the suppression hearing of testimony to the effect that at one point defendant had "hitched up” his pants so as to reveal a portion of a gun butt, has all the indicia of having been patently tailored to overcome the defendant’s objection (see People v Garafolo, 44 AD2d 86, 88; accord People v Manning, 51 AD2d 933; see, also, People v McCormick, 39 AD2d 590). As we stated in Garafolo (supra, p 88) "We refuse to credit testimony which has all the appearances of having been patently tailored to nullify constitutional objections.” Hopkins, Acting P. J., Martuscello, Latham and Damiani, JJ., concur.