Summary
In Curry, the police responded to shots fired and upon arriving on scene observed the defendant and a friend walking in the area.
Summary of this case from People v. YarboroughOpinion
March 27, 1995
Appeal from the Supreme Court, Queens County (Flug, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the police did not act improperly in conducting a protective frisk of his person. The officers responded to a radio transmission regarding "shots fired" in the area and observed the defendant and his companion walking in the area at 2:15 A.M. They further observed a bulge in the waistband of the defendant's companion, and a handgun was recovered from the defendant's companion during an ensuing pat-down of his person. These facts gave rise to a reasonable belief on the part of the testifying police officer that the defendant might also be armed and that the safety of the officer and others might be in jeopardy. Accordingly, the totality of the circumstances supports the hearing court's conclusion that the minimally intrusive conduct of the officer was reasonable and lawful (see, e.g., People v. Rich, 206 A.D.2d 443; People v Nelson, 179 A.D.2d 784; People v. Watson, 96 A.D.2d 1066; People v Jenkins, 87 A.D.2d 526; see generally, People v. Salaman, 71 N.Y.2d 869; People v. Davis, 166 A.D.2d 604).
The defendant's contention that the police officer's hearing testimony was contrived is unpersuasive. It is well settled that the factual findings and credibility determinations of the hearing court are entitled to great deference on appeal (see, People v. Prochilo, 41 N.Y.2d 759), and its conclusions will not be set aside unless manifestly erroneous or unsupported by the record (see, People v. Mack, 195 A.D.2d 485). We discern no basis for disturbing the court's determination in this case, inasmuch as it is supported by the record and the officer's testimony was neither incredible as a matter of law nor patently tailored to overcome constitutional objections (see, People v. Ennis, 158 A.D.2d 467; People v. Villa, 156 A.D.2d 402).
Finally, the defendant lacks standing to challenge the propriety of the pat-down of his companion. The gun seized from the companion was not the basis for the arrest of the defendant. Rather the defendant's arrest was based on a proper patdown of his person which revealed his own possession of an illegal handgun (see generally, People v. Wesley, 73 N.Y.2d 351; cf., People v. Mosley, 68 N.Y.2d 881, cert denied 482 U.S. 914). Sullivan, J.P., Copertino, Hart and Krausman, JJ., concur.