People v. Johnson

54 N.Y.2d 958 (1981)

The People of the State of New York, Appellant, v. Nathan Johnson, Respondent.

Court of Appeals of the State of New York.

Argued September 14, 1981.

Decided October 27, 1981.

Robert M. Morgenthau, District Attorney (David H. Steiner and Vivian Berger of counsel), for appellant.

Hillard Wiese, William E. Hellerstein and Susan Slovak for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*959MEMORANDUM.

The order of the Appellate Division should be affirmed.

A plainclothes detective observed defendant purchase a pistol holster at a 42nd Street novelty shop in Manhattan. When defendant left the shop, the officer approached him, identified himself and displayed his shield. When asked if he had a gun, defendant responded in the negative. The officer then ordered defendant to open his coat. After doing so, defendant offered to open his vest beneath his coat, at which point the officer observed the handle of a .22-caliber pistol in his vest pocket and then seized the weapon.

The purchase of the holster, although not itself a criminal act, provided a sufficient basis for the officer to approach defendant, identify himself and ask defendant a question (People v Samuels, 50 N.Y.2d 1035, cert den 449 US 984). As this court stated in Samuels, however, the purchase of a holster in itself is "not sufficient evidence of criminality to permit more than an inquiry" by police (50 NY2d, at p 1037). Samuels involved more than the mere purchase of a holster. The man being questioned made the menacing movement of placing his hand in his pocket and refused to withdraw it. These factors gave the officer reason to fear for his own safety and justified the officer's protective action in grabbing the man's hand (id.; see, also, People v Benjamin, 51 N.Y.2d 267).

In the instant case, however, the suppression court expressly found that there was nothing threatening or unusual about defendant's demeanor other than a level of nervousness that was to be expected in such an encounter. The court also found that defendant made no menacing gestures that could have given the officer reason to fear for his safety. These findings, for which there is support in the *960 record and which were affirmed by the Appellate Division, are beyond this court's review. In light of these findings, the officer's further intrusive step of ordering defendant to open his coat was improper (see Samuels, supra; Terry v Ohio, 392 US 1, 27; CPL 140.50, subd 3). The weapon seized was properly suppressed.

Order affirmed in a memorandum.