MEMORANDUM.
The order of the Appellate Division should be affirmed.
As found by the majority at the Appellate Division, Officer Sheffler, in responding at 4:30 A.M. to a 911 report of a burglary in progress at 155th Street and 8th Avenue, in Manhattan, ordered defendant down from a fire escape at gunpoint, put him against the wall, and frisked him without first inquiring about his reasons for being there. The majority properly held that this conduct was unjustified. We agree with the dissent, however, that the nature and location of the area where a suspect is detained may be one of the factors considered in determining whether, in a given case, the police acted reasonably (see, People v De Bour, 40 N.Y.2d 210, 220; People v Oden, 36 N.Y.2d 382, 385). Nevertheless, this factor, if considered here together with the circumstance that defendant's clothing and his presence on the fire escape were consistent with information transmitted in the report, would not warrant the degree of intrusion employed.
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.
Order affirmed in a memorandum.