Opinion
October 30, 1990
Appeal from the Family Court, Bronx County (Harold Lynch, J.).
The trial court, following a Mapp hearing, denied appellant's motion to suppress. According to the police officer who testified at the hearing, he and his partner were on plainclothes patrol when they were approached by a cab driver who informed them that appellant and others had just pointed a gun at him. The officers immediately drove around the corner, having directed the cab driver to follow them, and observed appellant and a companion, who fit the general description given by the cab driver, a short distance away. Observing a bulge in appellant's jacket, one of the officers directed appellant to put his hands on his head, and asked him what was the bulge. Appellant responded that it was a gun, whereupon the officer recovered the weapon. At this point, the cab driver, who had followed police around the corner, drove off without having confirmed the identification.
Appellant testified in a manner which directly contradicted the officer's testimony. Appellant claimed that he had only been walking a friend home from school when police drove up, threw him against the wall, and searched him.
The hearing court observed that the officer did not mention in the complaint report, nor in his memo pad, that he had received the information from the cab driver. Although noting the officer's carelessness in "bookkeeping", the hearing court credited the officer's testimony entirely, and entirely discredited appellant's testimony. We do not find any basis to disturb that determination. As such, we do not agree with appellant that the officer's testimony was incredible as a matter of law.
The stop and inquiry were proper as the information in the officer's possession was sufficient to justify the stop (see, People v. Stewart, 41 N.Y.2d 65). Although the informant absented himself before he could confirm the identification, the information which he imparted was sufficient for the stop and inquiry (People v. Castro, 115 A.D.2d 433, affd 68 N.Y.2d 850). Appellant's response to the officer's inquiry then provided the basis for the further search (see, People v. Bennett, 70 N.Y.2d 891).
Finally, we find no infirmity in the facial sufficiency of the petition, which was subsequently augmented by a ballistics report which established operability of the weapon (see, Matter of Rodney J., 108 A.D.2d 307).
Concur — Ross, J.P., Milonas, Asch, Ellerin and Rubin, JJ.