Opinion
January 7, 1992
Appeal from the Supreme Court, New York County, Budd G. Goodman, J., Murray Mogel, J.
Defendant's motion to suppress was properly denied. The officers were responding to one of a number of reports of an assault in progress, and a person whose description matched that of the defendant possessed the gun that was mentioned in the reports. When encountered by the police, defendant was wearing a shirt like the one described in the reports and carrying a small ax. Under these circumstances, the patdown that the officers conducted was permissible to insure their safety. (People v McLaurin, 43 N.Y.2d 902, revg on dissenting opn 56 A.D.2d 80; People v. Sustr, 73 A.D.2d 582.)
Defendant was not deprived of a fair hearing because of the failure of the police to preserve the ax, which disappeared in the melee, the loss of this evidence being a matter that was necessarily considered by the hearing court in assessing the credibility of the police officer who testified.
Concur — Ellerin, J.P., Kupferman, Ross and Smith, JJ.