Opinion
December 29, 1993
Appeal from the Onondaga County Court, Mulroy, J.
Present — Callahan, J.P., Pine, Lawton, Doerr and Boehm, JJ.
Judgment unanimously reversed on the law, motion to suppress granted and indictment dismissed. Memorandum: Defendant contends that County Court erred in denying his motion to suppress the gun discovered in a car in which he was a passenger and his statements to the police. We agree.
At approximately 8:50 P.M. on January 3, 1992, the police received a dispatch that an armed robbery had occurred at Patsy's Pizza and that the suspect was a black male wearing a green jacket. Shortly thereafter, investigating officers observed a white car in a parking lot two blocks from the robbery. The driver's door of the car was slightly open and the engine was running. Defendant was sitting in the front passenger's seat of the car. The officers observed a black male wearing a green jacket approaching the car. As that individual entered the car, one officer approached the driver's side of the vehicle, while another approached the passenger's side. The officers directed the occupants to leave the car and place their hands on it; the officers patted them down without incident or discovery of any contraband. After frisking defendant, an officer reached under the car seat and discovered a weapon. Because the officers had removed the occupants from the car and patted them down without incident, the search of the car was not reasonably related to the need to protect the officers' safety and, therefore, was improper (see, People v Torres, 74 N.Y.2d 224; see also, People v Mullins, 196 A.D.2d 894; People v Snyder, 178 A.D.2d 757, affd 80 N.Y.2d 815; People v Drayton, 172 A.D.2d 849, lv denied 78 N.Y.2d 921). Consequently, the gun seized during the search and defendant's statements, which were the fruit of that improper search, must be suppressed.