THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v WILLIE F. JENKINS, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
July 16, 2009
[882 NYS2d 583]
The Chemung County 911 call center received a telephone call reporting that a man inside a local bar was brandishing a silver gun. The caller, who was apparently a man but identified himself with a woman‘s name, claimed that the man with the gun was dressed in a black fur coat, light blue pants and a green hat. When police arrived at the bar, which was occupied by 15 to 20 patrons, they approached defendant, who fit the description they had been given. After beginning to speak to defendant, they asked him to step outside and, upon searching him, discovered a loaded, operable 9 millimeter pistol in his possession.
After an indictment was filed, defendant moved to suppress the gun. County Court denied that motion without a hearing. Defendant then pleaded guilty to a lesser charge of attempted criminal possession of a weapon in the second degree. He now appeals, contending that the court should have granted his suppression motion or at least held a hearing on the issue. We disagree.
Defendant‘s motion papers were not supported by sufficient sworn factual allegations, permitting County Court to deny the motion without a hearing (see
Regardless of whether the call was from a citizen informant or an anonymous caller, the police had a duty to respond to a report of an individual brandishing a gun in a public establishment. Upon entering the bar and seeing an individual who matched the specific description—including the unusual clothing—the police had a common-law right to inquire (see People v Herold, 282 AD2d 1, 7 [2001], lv denied 97 NY2d 682 [2001]). During their inquiry in response to the call concerning a potentially-armed suspect, the police were “permitted to take limited precautionary measures to protect themselves” and other citizens in the vicinity (id.). When coupled with even an anonymous tip, the police could properly frisk defendant if their own observations prior to seizing him provided them with a rea
In grand jury testimony attached to the People‘s answering papers, an officer testified that he observed defendant repeatedly reaching into his pockets and toward his waistband while the officers were trying to conduct their inquiry. As noted, defendant submitted no reply to the People‘s answering papers and his original motion did not include any factual allegations regarding his encounter with the police. Because the motion papers failed to raise a factual issue so as to require a hearing, and the facts alleged by the People supported the police officers’ actions in conducting the frisk, County Court was entitled to summarily deny the motion (see
Cardona, P.J., Spain, Rose and Garry, JJ., concur. Ordered that the judgment is affirmed.