Opinion
August 30, 1993
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment is affirmed.
Several police officers responded to a radio report of a robbery in progress in Brooklyn. After the police officers arrived at the scene, they were approached by a woman who told them that she had just been robbed. The woman motioned toward the area where the defendant was standing with another man, and shouted, "Over there, over there." The defendant and the other man began to walk away from the police officers, but the officers stopped and frisked them. During the frisk, an officer recovered a revolver from the defendant. Subsequent to the recovery of the revolver, it was determined that the defendant had not committed the robbery.
We find that there was a proper basis to stop and frisk the defendant. Although the stop and frisk involved a case of mistaken identity, we find it was not a pretext. A stop and frisk, based on the reasonable suspicion of a police officer that a person has committed a crime, and poses a danger of physical injury to the officer (see, CPL 140.50), will not be invalidated if the suspicion is later determined to be mistaken (see, People v Fabian, 126 A.D.2d 664; People v Nimmons, 60 A.D.2d 129). The hearing court, in crediting the police officer's testimony and discrediting the testimony of the robbery victim and the defendant (see, People v Anderson, 160 A.D.2d 947), correctly determined that under all of the circumstances (see, People v Ellison, 186 A.D.2d 755; People v Mack, 26 N.Y.2d 311), the stop and frisk and subsequent arrest of the defendant was proper. Mangano, P.J., Thompson, Pizzuto and Joy, JJ., concur.