Opinion
January 17, 1972
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 14, 1969, convicting him of attempted possession of narcotics as a felony (former Penal Law, § 1751, subd. 3), upon a guilty plea, and imposing sentence. Case remanded to the Criminal Term for proceedings not inconsistent with the views herein set forth; and appeal held in abeyance in the interim. In our view, the decisions of the Criminal Term on defendant's motion to suppress evidence and on his motion for reargument do not set forth sufficient findings of fact to enable us to determine whether there were "constitutionally adequate, reasonable grounds" for the frisk conducted in this case ( Sibron v. New York, 392 U.S. 40, 64). Moreover, the decisions fail to provide any factual basis for the conclusion that the officer who frisked defendant could "reasonably suspect(s) that he * * * [was] in danger of life or limb" (Code Crim. Pro., § 180-a, subd. 2). Martuscello, Acting P.J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.