Asch, J., dissents in a memorandum as follows: Officer Perino who was on radio motor patrol with his partner, on a Saturday November night at 9:45 p.m., received a radio report of "a man with a gun”. The report described the individual as a male black, wearing a black (or blue) hat, brown (or beige) jacket or shirt, dark blue jeans and brown boots, approximately fourteen years of age, at the corner of Brandt Avenue and University Avenue. When the officers proceeded to that location, they saw an individual fitting that description walking from the corner of Brandt and University Avenues south toward 174th Street, in the company of five or six teenagers. The officers, who were in uniform, stopped the patrol car at the corner, and got out. As Officer Perino testified:
"We moved to the side of the car. We used the car as cover and a parked car as cover, and we approached Mr. [M], who fit the description from the radio run. "At that time as we exited the car looking for cover, approaching him, do [sic] to the tactical reasons, the danger, we had our revolvers drawn * * * They were not pointed at the defendant [sic], they were pointed towards the ground. At this time Mr. [M] saw us coming out of the car with our revolvers. He stopped, put his hands up in a manner that was up towards the shoulders a little bit, took one step back * * * "At that time defendant [sic] then stated to myself and my partner that—he said, T am carrying an air-gun,’ which also at that time we saw a bulge from the defendant’s [sic] waistband * * * *353"Then from that time on I went directly to the bulge, produced an air pistol. At this time, feeling secure about the limit of danger being lowered we then asked the defendant [sic] to come over to the police car which was parked 7 to 8 feet away, and from there we did a thorough search of the defendant [sic] ” The officer also testified that when he first recovered the airgun, he believed it to be a firearm.
When the officers received the radio report of a "man with a gun” at a specific location with a detailed description and then saw respondent about a block away, coming from that location and substantially fitting the description, they had a "founded suspicion” that criminal activity was afoot. "The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure.” (People v De Bour, 40 NY2d 210, 223.) The fact that the officers drew their weapons upon their approach was not a seizure of the respondent, as found by the Family Court, but simply a necessary and minimal step to protect themselves while they investigated. If the police had a duty to inquire further after receiving the radio call and description which fit respondent, they most certainly had a concomitant right to safeguard their lives, by a simple and minimal precaution (see, People v Chestnut, 51 NY2d 14, 21, cert denied 449 US 1018; People v Benjamin, 51 NY2d 267, 271).
Immediately thereafter, when the respondent threw up his hands and said "I am carrying an air-gun”, the inquiry was, at the least, escalated to the level of a detentive stop and frisk, especially since the officer testified that he saw a "bulge” in respondent’s waistband. "Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person (CPL 140.50, subd 1; see Terry v Ohio, 392 US 1; People v Cantor, supra). A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed (CPL 140.50, subd 3).” (People v De Bour, supra, at 223.) When this frisk produced the gun, which appeared to be a "real firearm”, the police had probable cause to arrest respondent and the search which thereafter revealed the heroin was lawfully *354conducted incident to the arrest. In fact, when the respondent announced to the officers that he had an air-gun, even if the officers did not observe a bulge, they still had the right to frisk him. Further, even if the officers did not believe the weapon to be a "real firearm”, since respondent was under sixteen years of age, they had probable cause at that time to arrest him. Pursuant to Penal Law § 265.05 it is unlawful for anyone under the age of sixteen to possess an air-gun. Thus, under any scenario, the frisk was lawful, as was the subsequent arrest and incidental search of respondent. To summarize, the only possible discrepancies between the Sprint report and the officer’s account of what he heard and what the youngster was wearing were a blue hat instead of a black hat, and a beige shirt instead of a brown one. The rest of the description including respondent’s approximate age fit the respondent exactly. Furthermore, the police action in responding to the radio run describing someone with a gun was measured and reasonable. When the respondent saw them, he put his hands up and said he had a gun. Thus, the officers had probable cause to arrest him at that time and the subsequent search of the respondent which revealed the 54 decks of heroin besides an air-gun was, therefore, legal as one incident to arrest.
Accordingly, I would reverse the order of the Family Court, Bronx County, on the law, deny respondent’s motion to suppress the contraband and reinstate the petition.