PEOPLE v. WALLEN

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Appellant, v. Desmond WALLEN, Defendant-Respondent.

Decided: March 22, 2001

NARDELLI, J.P., WILLIAMS, TOM, LERNER and FRIEDMAN, JJ. Vincent Rivellese, for Appellant. Leighton M. Jackson, for Defendant-Respondent.

Orders, Supreme Court, New York County (Felice Shea, J.), entered on or about April 23, and May 20, 1999, which granted defendant's motion to suppress physical and identification evidence as fruit of an unlawful stop and frisk and dismissed the indictment, unanimously reversed, on the law and the facts, the motion denied, the indictment reinstated and the matter remanded for further proceedings.   Appeal from order, same court and Justice, entered on or about June 15, 1999, which granted the People's motion to reargue and, thereupon, adhered to its original decision, unanimously dismissed.

 The police officers herein acted on the complaint of an informant who flagged them down, possibly stated his name, candidly advised them that he had not personally witnessed the gun-menacing incident that he was reporting but that he had had prior encounters with defendant, provided a detailed description and the location of defendant, a construction site security guard, and volunteered to locate the alleged victim, who was his friend and neighbor.   Under such circumstances, the officers had sufficient basis to find that the informant was credible (see, People v. Kadan, 195 A.D.2d 174, 178, 607 N.Y.S.2d 270, lv. denied 83 N.Y.2d 854, 612 N.Y.S.2d 386, 634 N.E.2d 987), that his basis of knowledge was a conversation with his friend, a crime victim and sufficient cause to make inquiry of defendant (see, People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   Upon proceeding to the construction site and finding the defendant as described, the officers had justification, given the tenor of the report, to engage in a precautionary patdown of defendant (see, People v. Salaman, 71 N.Y.2d 869, 870, 527 N.Y.S.2d 750, 522 N.E.2d 1048).   Defendant's request to excuse himself briefly and his repeated reaching for his right rear waistband area, upon the officers' approaching him with weapons holstered, provided further justification for the stop and frisk (see, People v. Bruce, 78 A.D.2d 169, 172-74, 434 N.Y.S.2d 338, lv. denied 52 N.Y.2d 1074, 438 N.Y.S.2d 1031, 420 N.E.2d 403;  see also, People v. Corbett, 258 A.D.2d 254, 687 N.Y.S.2d 311, lv. denied 93 N.Y.2d 898, 689 N.Y.S.2d 710, 711 N.E.2d 986).