Opinion
May 3, 1990
Appeal from the Supreme Court, New York County (Jerome Marks, J.).
As the police were finishing up a buy-and-bust operation inside an upper Manhattan "smoke shop", defendant entered the premises. He promptly turned to leave, but was pushed up against the wall and explained that he had entered to buy a bag of marihuana. The officer who accosted defendant felt something hard at defendant's waist when he pushed and, acting on what he had just detected, then reached in and retrieved a handgun.
The People appeal from the order suppressing the handgun.
An affirmance is in order because defendant's forcible detention was not reasonably related to the articulable basis for the police action. A crime had been committed, but defendant was in no way connected to the marihuana sale that had been just concluded. (People v. Arviello, 133 A.D.2d 589.) He just happened to interrupt the police search of the premises. (People v Fripp, 85 A.D.2d 547, affd 58 N.Y.2d 907; Matter of James L., 133 A.D.2d 460, 461.) Accordingly, there was no basis for the officer to physically accost defendant. Since the officer's actions led to the discovery of defendant's waistband bulge and the revelation of defendant's unlawful purpose, these factors cannot be used to validate the search. (People v. Cantor, 36 N.Y.2d 106, 111.)
Concur — Murphy, P.J., Ross, Rosenberger, Kassal and Wallach, JJ.