Opinion
June 26, 1975
Judgment, Supreme Court, New York County, rendered February 8, 1973, convicting defendant, upon his guilty plea, of attempted possession of a weapon as a felony, unanimously reversed, on the law, the defendant's motion to suppress granted and the indictment dismissed. Defendant's motion to suppress the gun found in his possession as the result of a "frisk", was denied after a hearing. The sole issue on this appeal is the constitutionality of that "frisk". Study of the record discloses that even apart from any issue of credibility, there was no justification for a frisk. The mere observance of a "sagging" pocket absent other "suspicious" circumstances is not enough. With commendable candor, the District Attorney concedes that there was insufficient justification for a frisk of the defendant and that the gun found as a result of the frisk must, therefore, be suppressed.
Concur — Markewich, J.P., Lupiano, Tilzer, Lane and Lynch, JJ.