People v. Watson

48 A.D.2d 815, 370 N.Y.S.2d 72, 1975 N.Y. App. Div. LEXIS 10017

Opinion

Judgment, Supreme Court, New York County, rendered February 8, 1973, convicting defendant, upon his guilty plea, of attempted possession of a weapon as a felony, unanimously reversed, on the law, the defendant’s motion to suppress granted and the indictment dismissed. Defendant’s motion to suppress the gun found in his possession as the result of a "frisk”, was denied after a hearing. The sole issue on this appeal is the constitutionality of that "frisk”. Study of the record discloses that even apart from any issue of credibility, there was no justification for a frisk. The mere observance of a "sagging” pocket absent other "suspicious” circumstances is not enough. With cqmmendable candor, the District Attorney concedes that there was insufficient justification for a frisk of the defendant and that the gun found as a result of the frisk must, therefore, be suppressed. Concur—Markewich, J. P., Lupiano, Tilzer, Lane and Lynch, JJ.