Opinion
No. 144 SSM 8.
Decided May 5, 2011.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 23, 2010. The Appellate Division (1) reversed, on the law and the facts, an order of the Supreme Court, Bronx County (Caesar Cirigliano, J.; op 19 Misc 3d 1140[A], 2008 NY Slip Op 51077[U]), which had granted a motion by defendant to suppress physical evidence and a statement by the defendant, (2) denied the motion, and (3) reinstated the criminal complaint.
While the arresting detective and his partner were on motor patrol one evening, the detective observed in the light of the street lamps a shiny, silver-colored metallic object clipped to defendant's right rear pants pocket. In addition to the object's curved clip on the outside of the pocket, the top of the object visibly protruded above the top of the pocket. Based on his training and experience, involving 50 to 60 arrests for weapon possession, the detective believed the object to be a gravity knife or a small-caliber handgun. After stopping his car, the detective and his partner approached defendant and asked him to stop. The officers did not draw their guns. When he was two to three feet behind defendant, the detective pulled the shiny object out of defendant's pocket. He did not frisk defendant or question him before taking the object, which proved to be an illegal gravity knife. The detective and his partner placed defendant under arrest and drove him to the precinct station. While in transit, defendant spontaneously stated that he had been keeping the knife for his own safety, based on his belief that someone he knew was trying to kill him. Defendant was charged with criminal possession of a weapon in the fourth degree and unlawful possession of a knife.
People v Herrera, 76 AD3d 891, affirmed.
Bronx Defenders, Bronx ( Matthew Caldwell and Robin S. Steinberg of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx ( Stanley R. Kaplan of counsel), for respondent.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed ( see People v Fernandez, 16 NY3d ___, 2011 NY Slip Op 03676 [decided today]).
Concur: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH and PIGOTT. Judge JONES dissents for reasons stated in his dissenting opinion in People v Fernandez ( 16 NY3d ___, ___, 2011 NY Slip Op 03676, *4 [2011] [decided today]).