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A recent decision by the U.S. Supreme Court, which held that an anonymous tip about a person carrying a gun is not enough to justify a police officer’s frisk of the person, does not apply to a man stopped in the lobby of a Harlem building, a New York state appeals court has ruled. The Appellate Division, 1st Department, in People v. Herold, 3257, unanimously rejected defendant Joseph Herold’s argument that his plea to the charge of criminal possession of a weapon in the third degree should be vacated. Herold claimed that police had improperly stopped and frisked him on the basis of an anonymous report describing a man with a gun involved in a dispute in front of a certain building on West 116th Street. Acting Justice Harold B. Beeler had sentenced Herold to 1-3/4 to 3-1/2 years in prison on the gun charge in 1999. Presiding Justice Joseph P. Sullivan, writing for the five-judge panel, distinguished the police confrontation with Herold from the incident that gave rise to the U.S. Supreme Court’s March 2000 holding in Florida v. J.L., 529 U.S. 266. In that case, a police officer frisked the defendant based solely on information provided in an anonymous telephone call that a young black male, wearing a plaid shirt, standing at a particular bus stop, was carrying a gun. “[T]he Supreme Court’s concern over anonymous tips stemmed from the possibility of false reports and the potential such report had for the harassment of citizens by informants who, by virtue of their anonymity, could not be held accountable,” Justice Sullivan wrote. “Such risk, however, was substantially diminished in this case because the informant was not truly anonymous. The responding officers were aware that the call had emanated from a specific apartment in the very building outside of which the man with the gun was involved in a dispute,” he said. The officers were on their way to the apartment to speak to the telephone tipster and were buzzed into the building after they rang the apartment’s buzzer, the judge noted. The defendant, a man matching the description given by the caller, happened to enter the building as the officers waited for the elevator. A PISTOL AND BODY ARMOR One of the officers told Herold to put his hands up in the air, and when he did not comply, the other officer pinned Herold’s hands against the wall. As the police officer attempted to frisk him, Herold attempted to evade his hands. The officer felt a hard object in Herold’s jacket and reached inside to pull out a .32-caliber automatic pistol, the decision said. The fact that police knew the address and apartment from which the information came gave the informant greater accountability than the anonymous tipster in J.L., Justice Sullivan said. “[T]his partially identified informant bears much closer resemblance to an identified citizen informant, who is presumed to be reliable … , than to a truly anonymous informant,” he said. Even if the caller’s information was insufficient to justify an immediate frisk of Herold, the judge added, the police had a common-law right to inquire and take appropriate precautionary measures to protect themselves when the defendant was slow to comply with a direction to raise his hands. Once the officers recovered the gun, they had probable cause to arrest Herold and seize the bulletproof vest they discovered in a more complete search as part of that lawful arrest, he said. Justices Ernst H. Rosenberger, Angela M. Mazzarelli, Alfred D. Lerner and John T. Buckley concurred with Sullivan’s opinion. Herold was represented on the appeal by Steven R. Berko and M. Sue Wycoff of the Legal Aid Society. Manhattan Assistant District Attorneys Robert W. Gifford and Michael S. Morgan handled the appeal for the prosecution.

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