Opinion
No. 3415.
October 21, 2010.
Judgment, Supreme Court, New York County (Herbert Adlerberg, J.H.O., at hearing; John Cataldo, J., at plea; Thomas Farber, J., at sentence), rendered August 25, 2009, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously reversed, on the law and the facts, defendant's suppression motion granted, and the indictment dismissed.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Timothy Stone of counsel), for respondent.
Before: Gonzalez, P.J., Andrias, Nardelli, McGuire and Abdus-Salaam, JJ.
It is well settled that a frisk is permissible only if the police possess a particularized reasonable suspicion that the suspect "is armed and may be dangerous" ( People v Russ, 61 NY2d 693, 695). Although he did not see a transaction, an officer observed signs of drug trafficking in an area known for such activity that provided a founded suspicion that defendant had bought drugs in a supermarket. After receiving a radio communication from the observing officer, the arresting officer asked defendant where he was coming from. Although the officer concluded that the answer defendant gave was a lie, its truth or falsity was not apparent. Neither defendant's answer nor his silence when the officer asked him whether he was armed provided a sufficient predicate for a frisk ( see People v Banks, 85 NY2d 558, 562; People v Gonzalez, 295 AD2d 183). Accordingly, the suppression motion is granted.