Opinion
April 14, 1977
Judgment, Supreme Court, New York County, rendered April 1, 1975, convicting defendant of the crime of possession of a weapon as a felony and sentencing him to a term of imprisonment of 1/2 to 4 years, unanimously reversed, on the law, and vacated, the motion to suppress is granted, and the indictment dismissed. In testimony at the suppression hearing, the arresting officer in the following terms related his critical observation of the defendant who, at the time of arrest, was wearing a leather jacket: First, "I noticed that there was a bulge in his right hand pocket of his jacket." Second, "I noticed the bulge in his right hand jacket pocket which I thought that it might look like a gun." Third, "What I mean is I couldn't be absolutely certain that it was a gun." Even if the officer is fully credible, these observations provide an insufficient basis for defendant's arrest (People v Goings, 51 A.D.2d 901).
Concur — Murphy, P.J., Birns, Capozzoli and Lane, JJ.