
    The People of the State of New York, Respondent, v. Burton N. Pugach, Appellant.
    Submitted October 12, 1964;
    decided December 3, 1964.
    
      
      Burton N. Pugach, pro se, for appellant.
    I. Subdivision 2 (formerly 5-a) of section 1897 of the Penal Law is unconstitutional in that it imposes punishment as a felony for the same act as is punishable as a misdemeanor pursuant to subdivision 3 (formerly 4) of section 1897 of the Penal Law, in violation of “due process of law” and “equal protection of law” safeguards in the Fourteenth Amendment. (Lanzetta v. New Jersey, 306 U. S. 451; Winters v. New York, 333 U. S. 507; People v. Nicometi, 12 N Y 2d 428.) II. Conviction for a felony deprived appellant of his constitutional right to due process of law. (People v. Englese, 7 N Y 2d 83.) III. Where the undisputed record facts reveal a want of probable cause to arrest or search appellant, in violation of the Fourteenth Amendment, the appeal should be held in abeyance to abide a hearing to suppress the firearm in Bronx Supreme Court. (Mapp v. Ohio, 367 U. S. 643; People v. Loria, 10 N Y 2d 368; People v. O’Neill, 11 N Y 2d 148; People v. Coffey, 11 N Y 2d 142; People v. Ostolaza, 19 A D 2d 871; Preston v. United States, 376 U. S. 364; People v. Friola, 11 N Y 2d 157.) IV. The denial of appellant’s constitutional right to present evidence on his behalf deprived appellant of due process of law. Y. Failure to instruct the jury pursuant to sections 79 and 80 of the Code of Criminal Procedure was reversible error. (People v. Singleton, 21 A D 2d 907.) VI. Manifested hostility of court and District Attorney deprived appellant of his constitutional right to a fair trial. (People v. Dovico, 6 A D 2d 457.) VII. Presentation of evidence that appellant had refused to answer police questions deprived him of his constitutional right against self incrimination secured by the Fourteenth Amendment. (Malloy v. Hogan, 378 U. S. 1.)
    
      Isidore Doilinger, District Attorney (Walter E. Dillon of counsel), for respondent.
    I. Subdivision 5-a of section 1897 of the Penal Law, which defendant has been adjudged to have violated, is valid. (People v. Dwyer, 215 N. Y. 46; People v. Florio, 301 N. Y. 46; People v. Malavassi, 248 App. Div. 784, 273 N. Y. 460; People v. Rudolph, 277 App. Div. 195, 303 N. Y. 73; People ex rel. Di Lapo v. Tutuska, 27 Misc 2d 544, 11 A D 2d 906, 9 N Y 2d 910; People v. Church, 1 How. Prac. [N. S.] 366.) II. When the gun was introduced in evidence at the trial, the defense neither objected nor suggested that it had been procured through an unlawful search. (Wolf v. Colorado, 338 U. S. 25; People v. Loria, 10 N Y 2d 368; Mapp v. Ohio, 367 U. S. 643; People v. Friola, 11 N Y 2d 157; People v. Coffey, 11 N Y 2d 142; People v. O’Neill, 11 N Y 2d 148; Adams v. New York, 192 U. S. 585.) III. The trial court did not exclude any evidence that was properly admissible. IV. The refusal of the trial court to instruct the jury on the law pertaining to self-defense was correct. V. Defendant was accorded a fair trial. (People v. Shattuck, 194 N. Y. 424; People v. Sherlock, 166 N. Y. 180.)
   Dye, J.

The defendant stands convicted, following a jury trial in the former Bronx County Court, on an indictment charging that he ‘ ‘ feloniously did have and carry concealed upon his person, a certain pistol, revolver and firearm which was then loaded with ammunition, without a written license therefor ”, in violation of section 1897 of the Penal Law. The conviction has been affirmed in the Appellate Division, First Department. This appeal is here by permission, so that we may consider whether a " frisk" by police officers leading to the discovery of the concealed loaded firearm (a .38 caliber police positive pistol, containing five live shells in its chamber) in a brief case being carried by defendant was unreasonable within the meaning of the Fourth Amendment requiring suppression.

The record indicates that the New York City Police Department had been investigating defendant as to his complicity and connection with “another matter” Which had occurred June 15, 1959. By prearrangement, on the morning of October 30, 1959, three city police officers went by squad car to an office building in which the defendant was known to have an office, and parked at the curb. At about 10:30 a.m. they observed the defendant Pugach, carrying a brief case, enter the office building. Two of the officers followed him into the building, accosted him by the elevator and spoke to him about the “other matter”, following which he was asked to accompany them and, with an officer on either side, he was escorted to the parked squad car. There they AA-ere joined by a third officer. One officer entered the rear seat of the squad car followed by the defendant and another officer. The third officer entered the front seat at the right of the driver. While all were so seated, the officers seated on either side of defendant in the rear seat proceeded, in police parlance, to “frisk” the defendant. The latter was then wearing a blue coat with a belt which the officers asked him to untie. As he did so, the defendant put the brief case which he had been holding on his lap with the handle and opening toward his body on the car floor between his feet. The officers completed the ‘ ‘ frisk ’ ’ without incident, after which defendant retied the belt to his coat, reached down, picked up the brief case and placed it on his lap as before with the opening near his body. One of the officers seated at his side then reached over, took the brief case and, as he testified, ‘ ‘ put it on the floor in front of me between my legs ’ ’. He unzipped the fastening, looked in, saw a gun and exclaimed: ‘ Look what I found ’ ’, at the same time showing the brief case to his fellow officers. The gun it contained was then removed, the chamber broken and five live shells fell out. The defendant was then asked if he had a permit. He replied he did not. He was then asked: ‘ ‘ Why are you carrying it? ” and he answered by saying that he would give an explanation ‘ ‘ at the right time and place ’ ’. The officers then drove with defendant to the station house.

At the trial the defendant took the stand to testify some time previously that a police officer had given him the gun for use in self-defense against alleged blackmailers who were threatening him with bodily violence. The police officer called in rebuttal categorically denied that he had given defendant the gun and then testified affirmatively that since June 15, 1959 he had been investigating defendant as to the “ other matter ”. The questions put to him both on direct and on cross-examination by the defense counsel were carefully framed to prevent any disclosure as to what the subject of the “ other matter” might have been. Thus the record is silent as to why the defendant had been under surveillance or what was said in the conversation between the defendant and the officers just before he was asked to enter the squad car. The defendant now says that, absent a record showing as to the “ other matter ”, no probable cause existed for an arrest, absent which the search of his brief case was illegal and the fruits thereof unavailable as evidence against him.

The Fourth Amendment, as we know, proscribes ‘ ‘ unreasonable ” searches and seizures. The determination of unreasonableness depends on surrounding facts and circumstances and, as we have said, “involves a balancing of interests”. We recently dealt with the reasonableness of a routine “frisk” made by police officers as an incident in the detention of a pedestrian whose actions had aroused the officers’ suspicions and whether the fully loaded gun thus obtained should have been suppressed. Under the facts adduced, we were satisfied that a “frisk” of a defendant was a reasonable and constitutionally permissive precaution to minimize the danger to a policeman who is trying to determine whether a crime has been or is about to be committed; in other words, that a ‘ ‘ frisk ’ ’ is distinguishable from a constitutionally protected search. We took pains to point out that the right to “frisk” is justified as an incident to an inquiry upon grounds of safety and precaution which might not initially sustain a search (People v. Rivera, 19 A D 2d 863, revd. 14 N Y 2d 441). The fact that the loaded gun was found concealed in the brief case, rather than in a pocket of defendant’s clothing, affords no ground for saying that this “ frisk ” was in reality a constitutionally protected search. The loaded firearm concealed in the brief case carried in the hands of the defendant was in the language of the statute “ concealed upon his person ” (Penal Law, § 1897). For purposes of the trial on the gun charge, the disclosure of the “ other matter ” was unnecessary in light of proof that the defendant and four others had been under surveillance for several months; that a police officer had fraternized with the defendant for the purpose of procuring information as to his complicity and participation in the “ other matter ” and that he was, in fact, being taken to a police station for further questioning. Under all the circumstances the inclusion of the brief case in the “frisk” was not so unreasonable as to be constitutionally illegal. In the view which we have taken it is unnecessary to consider whether the arrest prior to the search of the brief case was unlawful.

Accordingly, the judgment should be affirmed.

Fuld, J. (dissenting).

The gun, upon which the prosecution of the defendant was predicated, should not have been received in evidence since, in my view, it was illegally obtained by an impermissible search of the defendant’s brief case. (See Mapp v. Ohio, 367 U. S. 643; People v. O’Neill, 11 N Y 2d 148; People v. Loria, 10 N Y 2d 368.)

It appears that the defendant, while standing in the lobby of the building where his office was located, was taken into custody by several police officers for questioning about some “matter” — the nature of which was not disclosed —other than the present charge and directed by the officers to get into their squad car. The defendant, who was carrying a brief case at the time, sat in the middle of the rear seat between two policemen, while a third was in front behind the steering wheel: After the officers on each side of him had completed a so-called "frisk " of his person, which produced nothing, one of them took the brief case from the defendant’s lap, opened it and found a loaded gun. The police also removed from the bag—and, at the trial, placed in evidence along with the weapon — a document bearing the defendant’s name.

The search of the brief case may not be justified as incident to a lawful arrest for, on the basis of the record before us, probable cause for such action was not established. Nor, in my opinion, may it be upheld as a “ frisk ” on the strength of this court’s decision in People v. Rivera (14 N Y 2d 441). In Rivera (14 N Y 2d 441, 447, supra), the court sustained the validity of a frisk—that is, “a contact or patting of the [defendant’s] outer clothing” — on the ground that it was a procedure necessary for the protection of police officers, “ as an incident to inquiry upon grounds of elemental safety and precaution, ’ ’ once they decide to stop a suspiciously acting person and question him. Thus, it was said, in the balancing of interests, the invasion of privacy, occasioned by the police tactic of patting an individual ’s “ outer clothing ”, is outweighed by a regard for ‘ ‘ the security of the public order and the lives of the police ” (14 N Y 2d, at p. 447).

In the case before us, it cannot reasonably be urged that the lives or the safety of the three policemen required a search of the defendant’s brief case. After taking Pugach into custody, the officers had assured themselves, by resort to the sort of frisk involved in Rivera, that he had no gun on his person and, if they felt or suspected that the brief case might contain a weapon, they could easily have protected themselves against its possible use, without resorting to a search of the bag, by simply placing it on the front seat of the car, out of reach of the defendant. With such an obvious alternative at hand, the opening of the brief case by the police and their searching through its contents cannot be justified upon grounds of elemental safety and precaution ” but must, instead, be stamped as an impermissible violation of the individual’s constitutional right not to be searched except pursuant to a search warrant or as an incident to a lawful arrest. (See, e.g., Beck v. Ohio, 379 U. S. 89; Rios v. United States, 364 U. S. 253, 261-262; People v. Loria, 10 N Y 2d 368, 373, supra.)

As strongly as judges may condemn a defendant’s illegal possession of a gun or other contraband and as much as they may desire not to preclude the development of “ workable rules governing arrests, searches and seizures to meet ' the practical demands of effective criminal investigation and law enforcement ’ ” (Ker v. California, 374 U. S. 23, 34), courts may not uphold a search which is unreasonable by merely giving it a different label. The conduct of the officers in this ease, despite their good intentions, amounted to a blatant violation of Fourth Amendment rights, and I see no alternative but to invoke the exclusionary rule mandated by Mapp (367 U. S. 643, supra) and reverse the defendant’s conviction.

Chief Judge Desmond and Judges Van Voorhis, Burke, Scileppi and Bergan concur with Judge Dye; Judge Fuld dissents in a separate opinion.

Judgment affirmed. 
      
      . After observing in the Rivera case that a “frisk”, as it is generally-understood in police usage, “is a contact or patting of the outer clothing of a person to detect by-the sense of touch if a concealed weapon is being carried ” (14 N Y 2d, at p. 446), the court went on to say, “Ultimately the validity of the frisk narrows down to whether there is or is not a right by the police to touch the person questioned. The sense of exterior touch here involved is not very far different from the sense of sight or hearing — senses upon which police customarily act” (p. 447).
     