Summary
In Kinlock, a man with a rifle on a street corner in the early evening; in McLaurin, a man with a gun leaving or entering a building at midnight.
Summary of this case from People v. McMahonOpinion
Argued November 18, 1977
Decided December 21, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, GEORGE J. BALBACH, J.
Susan E. Hofkin, William E. Hellerstein and William J. Gallagher for appellant.
John J. Santucci, District Attorney (Joan L. Craig of counsel), for respondent.
Order affirmed on the opinion by Mr. Justice GEORGE J. BALBACH at Criminal Term, Supreme Court, Queens County (see, also, People v Stewart 41 N.Y.2d 65).
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE. Judge FUCHSBERG dissents and votes to reverse in the following opinion.
To permit a "pat-down" or search on no more than an anonymous telephone call, as here, would be to expose innocent individuals to intrusion on their persons whenever malicious and unidentifiable tipsters accompany their false accusations with accurate descriptions of the targets they choose to name (see People v Stewart, 41 N.Y.2d 65, 69; People v Green, 35 N.Y.2d 193, 196). In the present case, for instance, unlike People v Stroller ( 42 N.Y.2d 1052), the defendant's answer was not unresponsive when the police officer approached him to make a common-law inquiry in response to the anonymous telephone call. Nor, unlike People v Williams ( 41 N.Y.2d 65), where the police officer had had several prior official encounters with the defendant and the latter had a suggestive bulge in the side of his overcoat (p 67), were there any such signs here. In brief, the defendant before us was not previously known to the officer, was responsive to the inquiry and there was no bulge to be observed. Accordingly, I would vote to reverse.
Order affirmed, etc.