184 A.D.2d 242 | N.Y. App. Div. | 1992
Judgment, Supreme Court, Bronx County (Arlene Silverman, J., at suppression hearing; Bonnie Wittner, J., at plea and sentence), rendered August 14, 1990, convicting the defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of imprisonment of 2 Vz to 5 years, unanimously affirmed.
On August 3, 1988, at approximately 12:45 a.m., police officers received the following radio transmission based upon an anonymous source: "Black male, white shorts, shots fired, 169th and Nelstin”. Upon their arrival at the scene, defendant was observed wearing white shorts and a white T-shirt, walking away from the area. Defendant ignored a request to stop and as officers in a police car nearby attempted to detain him, defendant fled towards the arresting officer who grabbed defendant by the waist and tackled him. After a scuffle, a .38 caliber pistol was removed from defendant’s pants and defendant was arrested.
While a radio transmission furnishing a general description of a "man with a gun” does not alone constitute reasonable suspicion, that information, "when * * * considered in conjunction with the attendant circumstances and exigencies, as observed by the police during the encounter * * * may collectively support a finding of reasonable suspicion so as to legitimatize a more intrusive police response.” (People v Bond, 116 AD2d 28, 31, lv denied 68 NY2d 767; People v Benjamin, 51 NY2d 267, 270.) Here, the police officer arrived at the specified location within minutes and observed defendant, who fit the transmitted description. This gave him "an indicia of reliability as to the anonymous tip” (People v Sutton, 91 AD2d 1051, 1052). Further, the incident occurred at night in a drug-prone area (People v Salaman, 71 NY2d 869, 870). The officer was also justified in considering defendant’s flight as an escalating factor, when coupled with the. circumstances noted above (People v Allen, 141 AD2d 405, 406, affd 73 NY2d 378).
Moreover, the limited pat down of defendant was justified inasmuch as the report of shots fired supported an objective view that the officer was in danger of physical injury by virtue of the distinct possibility that the detainee might be armed (People v Diaz, 181 AD2d 597).