People v. Hill (65 A.D.2d 706, 1978)

Order, Supreme Court, New York County, entered April 12, 1977, suppressing the defendant’s physical evidence and his statements to the police, unanimously reversed, on the law and the facts, and motion to suppress denied. On October 5, 1976, Detective Frank Grimes and two other officers were patrolling in an unmarked car in the area of 115th Street and St. Nicholas Avenue. At about 11:30 p.m., they received a radio call informing them that "Men with guns at 1800 Seventh Avenue on the eighth or ninth floors”. At the suppression hearing, Grimes gave the following account of what transpired upon entering the building. Initially, his partners stopped some individuals who were attempting to exit the building. As Grimes was ascending the second flight of stairs, he encountered a woman who turned to someone behind her and said "Police are here, police are coming.” Grimes then heard a noise in the second floor hallway that sounded like someone had hit a garbage pail. Upon proceeding to the second floor, Grimes saw the defendant about to enter an apartment. The detective identified himself and told the defendant he wished to ask him a few questions. To the detective’s initial inquiry, the defendant answered in the affirmative that he lived in the building. When the detective asked him for proof of that fact, the defendant began to mumble and look around. During this entire colloquy, defendant also kept the right portion of his body away from the detective. Grimes then positioned himself in front of the defendant. At that time, he observed a revolver protruding from defendant’s right front jacket pocket. When the defendant stated that he did not have a permit for the gun, he was arrested. On the way to the precinct in the police car, the defendant averred that he did not carry the gun for "offensive” reasons and merely to protect other people from "stickup men” in the subject building. After the defendant was read his Miranda warnings in the precinct, he repeated to the officers his alleged reason for carrying a gun. The defendant gave a different version of the facts. He maintained that, as he was putting his key in the door, Grimes came up to him and patted his jacket pocket without any explanation or inquiry. The detective then removed the gun from his jacket pocket. The defendant denied that the gun was visible prior to its removal by the detective. The court at the suppression hearing found that the detective had no probable cause to question defendant on the second floor since the radio call had referred to the eighth and ninth floors. Relying upon People v De Bour (40 NY2d 210), the court further found that the detective had no reasonable suspicion to believe that criminal activity was afoot. Therefore, he granted the motion to suppress both the physical evidence and the defendant’s statements in the police car. The court at the suppression hearing did not express any disbelief in the detective’s testimony with regard to the original stop of defendant. Because the court found that the original stop, as described by the detective, was illegal, it never reached the issue of whether the gun was visible to the detective. In resolving this appeal, we fully credit the testimony of the detective including the portion thereof as related to the visibility of the gun in defendant’s pocket (CPL 470.15, subd 1). The minimum requirement for a lawful detentive stop is a founded suspicion that criminal activity is afoot (People v Cantor, 36 NY2d 106, 114). To justify the stop, the police must indicate specific and articulable facts which, along with any logical deduction, reasonably prompt such intrusion. (People v Cantor, supra, p 113.) The action taken by the police must also be reasonably related in scope to the circumstances which rendered its initiation permissible. (People v De Bour, 40 NY2d 210, 215.) There are "articulable facts” present in this record that justify the detective’s action in stopping and questioning defendant. First of all, the detective could properly draw on his prior experience and knowledge that recent arrests for gun possession had been made in this building. Secondly, the detective could logically infer that the woman’s statement to an individual on the second floor was actually a warning to this defendant to secret himself from the police. Thirdly, the detective could fairly conclude that the subjects of the radio call had changed their location in the building during the interval it took to respond. Furthermore, the conduct of the detective was "reasonably related in scope to the circumstances” presented, particularly in view of the fact that he never unholstered his gun during this entire occurrence. When the defendant continued to mumble, look about, and otherwise act abnormally and evasively, the detective was justified in scrutinizing the defendant’s person and clothing more closely. Upon seeing the gun protruding from defendant’s pocket, the detective was warranted in arresting defendant. Likewise, we find that defendant’s subsequent statements in the police car were totally voluntary. Thus, the motion to suppress was erroneously granted. Concur—Murphy, P. J., Lupiano, Markewich, Sandler and Sullivan, JJ.

—Order, Supreme Court, New York County, entered May 15, 1978, denying plaintiff’s motion and defendant’s cross motion for summary judgment, unanimously modified, on the law, with $75 costs and disbursements to plaintiff-appellant-respondent by reversing so much thereof as denied plaintiff’s motion, and the motion granted, and, as so modified, affirmed. This action arises out of a dispute over the coverage of an insurance policy issued June 20, 1975, effective July 1, 1975, by defendant American International Life Assurance. Company of New York to plaintiff, Avnet, Inc. The policy stated that plaintiff was insured against any disability benefits it was required to pay "under Section 204 of Article 9 of the Workers’ Compensation Law of the State of New York or any laws amendatory thereof or supplementary thereto which may become effective during the Policy period”. On December 20,1976, the Court of Appeals in Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd. (41 NY2d 84) held that pregnancy-related disabilities must be compensated pursuant to the New York Disability Benefits Law (DBL) as supplemented by the Human Rights Law (HRL). Despite the fact that pregnancy benefits were excluded by subdivision 3 of section 205 of the Disability Benefits Law (Workers’ Compensation law, art 9), the Court of Appeals stated (p 88) that the DBL and HRL must be read together to impose "two concurrent independent minimum standards” and that "Whichever statute imposes the greater obligation is the one which becomes operative”. Subsequently, the State Legislature amended the DBL to provide for eight weeks of maternity disability benefits, which amendment became effective August 3, 1978. Plaintiff’s submission to defendant of disability benefit claims relating to pregnancy in light of Brooklyn Union Gas Co. were rejected on the ground that the DBL excluded such disability and plaintiff was obligated to purchase a "rider” to the policy to cover future pregnancy-related disability claims. As of January 1, 1978, plaintiff had paid $7,905.42 for the rider. Plaintiff commenced the instant action seeking a declaration of its rights under the policy. Recognizing that the only issue before us is a legal one of construction of an unambiguous contract of insurance and mindful that "policies of insurance, drawn as they ordinarily are by the insurer, are to be liberally construed in favor of the insured” (Miller v Continental Ins. Co., 40 NY2d 675, 678), it is clear that the holding in Brooklyn Union Gas Co. is dispositive and that the HRL is "supplementary” to the DBL. Accordingly, plaintiff is entitled to summary judgment declaring that defendant is required to pay disability benefits to plaintiff’s employees for disabilities arising out of or in connection with pregnancy together with the sum of $4,395.24 for benefits already paid by plaintiff and the sum of $7,905.42 for the cost of the additional premiums paid by plaintiff. Concur—Lupiano, J. P., Fein, Lane, Markewich and Sullivan, JJ.