People v. Otty

Jan 9, 1996
Versions:223 A.D.2d 364
636 N.Y.S.2d 1004
1996 N.Y. App. Div. LEXIS 55

Order, Supreme Court, Bronx County (Frank Torres, J.), entered March 24, 1994, which granted defendant’s motion to suppress a gun, unanimously affirmed.

The frisk of defendant was not supported by a reasonable *365belief, based on specific and articulable facts, that defendant had committed or was about to commit a crime nor that he was armed and presently dangerous. Defendant’s "mere propinquity to others independently suspected of criminal activity d[id] not, without more, give rise to probable cause to search [him]” (Ybarra v Illinois, 444 US 85, 91; Matter of Nelson S., 196 AD2d 422, 424-425). Thus, there was no legal basis for the frisk and the hearing court properly suppressed the gun recovered from defendant. Concur—Murphy, P. J., Wallach, Kupferman, Ross and Williams, JJ.