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Decided on November 7, 2007
Supreme Court, Queens County

327/2007
APPEARANCES OF COUNSEL
For the People: Richard A. Brown, District Attorney, Kew Gardens (by Brian Kohm, Assistant District Attorney) For the Defendant: Stephen Banks, Esq., New York (by Germaine Auguste, Esq. and Pamela
Peters, Esq.) Joel L. Blumenfeld, J. The defendant is charged with two counts of criminal possession of a weapon in the second [*2]degree [FN1] and disorderly conduct.[FN2], [FN3] On July 26, 2007, a Mapp-Huntley was held
before this court. At this hearing Sergeant Kevin Komorsky and the defendant, Jaiquane Edmond, testified. Their testimony differed a great deal and the court finds neither wholly credible. At the end of the hearing, both parties requested additional time to submit post-hearing memoranda of law, which they both did.
FINDINGS OF FACT
On December 21, 2006, at around 8:00 to 8:20pm, a group of five or six individuals, including the defendant, were congregating in front of 85-02 Rockaway Beach Boulevard, which is part of a public housing complex referred to as the Hamel Houses. They were "blocking the pedestrian
walkway going into the building" (Transcript at 5-6).[FN4] The Sergeant, in an unmarked car with two other officers, pulled over, turned on the red bubble lights, and the Sergeant, with his shield out, told them to leave the area. They nodded and started to walk away in apparent compliance with
the Sergeant's directive. Upon seeing this group walk away, the police left the scene.[FN5]
The Sergeant, in the same car, came back to the same building two or three minutes later. Although the defendant was there again, it is unclear whether the others were with him were a part of the same group the Sergeant asked to leave earlier (Transcript at 12). Again, he asked them to leave. Once again, they appeared to leave in compliance with the directive and the Sergeant left.
About two minutes later the Sergeant once again returned and the same group was there (Transcript at 7). This time, however, the three police officers, for the first time, exited the unmarked police vehicle. The Sergeant believed the group was impeding the pedestrian walkway [*3]and having
been given two prior opportunities to leave,[FN6] now the officers "were going to stop, question and frisk, possible [sic] summons all the individuals in front of the building" (Transcript at 18).
The officers told all of them to put their hands on the wall. The defendant, along with the others, complied and put their hands up (Transcript at 20, 21). "He reached, he checked me. He reached in my pants pocket and he found a gun" (Transcript at 21-22).[FN7] The defendant told the Sergeant: "You know what's going on here. I need it for protection" (Transcript at 9).[FN8]
ARGUMENT AND CONCLUSIONS OF LAW The People argue that the seizure of the weapon was justified as the product of a search incident to a lawful arrest in that the police had probable cause to arrest the defendant for disorderly conduct (Penal Law

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