People v. Smith

Order, Supreme Court, Bronx County (Harold Silverman, J.), entered on or about February 18, 1994, granting defendant’s suppression motion, unanimously affirmed.

After observing defendant make a left turn without signaling, two plainclothes officers in an unmarked car pulled up to the side of defendant’s car and observed that his hands were not on the steering wheel and that he was "fidgety”. Defendant followed the officers’ directive to drive to the corner. He then got out and began walking towards the officers’ unmarked car, but was ordered back to his car as one of the officers was exiting his own car. When defendant continued to walk towards the police car, the officer told his partner to hold defendant. Without questioning defendant, the officer immediately went to the driver’s side door, opened it, "sort of peer[ed] in,” and retrieved a small gun from the foot of the seat on the floorboard of the driver’s area.

*467Defendant’s unspecific "fidgety” behavior and the placement of his arms did not provide any reasonable basis for the officers to fear for their safety or to believe that defendant was armed, particularly since defendant made no threatening gestures once he exited the vehicle and the officers neither frisked defendant nor questioned him about the vehicle (People v Chapman, 211 AD2d 544; People v Torres, 74 NY2d 224). Concur—Sullivan, J. P., Ellerin, Rubin, Williams and Tom, JJ.