Majority
p. 364The People of the State of New York, Appellant, v Andrew Otty, Respondent. [636 NYS2d 1004]
Order, Supreme Court, Bronx County (Frank Torres, J.), entered March 24, 1994, which granted defendant’s motion to suppress a gun, unanimously affirmed.
The frisk of defendant was not supported by a reasonable
p. 365
belief, based on specific and articulable facts, that defendant had committed or was about to commit a crime nor that he was armed and presently dangerous. Defendant’s "mere propinquity to others independently suspected of criminal activity d[id] not, without more, give rise to probable cause to search [him]” (Ybarra v Illinois, 444 US 85 , 91; Matter of Nelson S., 196 AD2d 422 , 424-425). Thus, there was no legal basis for the frisk and the hearing court properly suppressed the gun recovered from defendant. Concur—Murphy, P. J., Wallach, Kupferman, Ross and Williams, JJ.
Cases cited
- Ybarra v. Illinois 444 US 85 at 91 p. 365