The People, Respondent,v.Richard Gonzalez, Appellant.

Brief

N.Y.April 28, 2015

To be argued by ROBERT S. DEAN APL-2014-00091 (Time Request: 15 Minutes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, June 2014 Respondent, - against - RICHARD GONZALEZ, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 7 4 Trinity Place New York, NY 10006 TEL (212) 577-2523 FAX (212) 577-2535 TABLE OF CONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT QUESTIONS PRESENTED INTRODUCTION STATEMENT OF FACTS Trial People's Case Defense Case Summations Charge, Verdict, and Sentence Appeal to the Appellate Division ARGUMENT POINT I THE COURT'S CHARGE, OVER OBJECTION, THAT TO BE GUILTY OF KNOWINGLY POSSESSING A "GRAVITY KNIFE," APPELLANT ONLY HAD TO KNOW HE HAD 11 THE KNIFE 11 THAT HE BOUGHT LEGALLY AT HOME DEPOT, DEPRIVED MR. GONZALEZ OF DUE PROCESS. U.S. CONST. , AMEND. iv 1 2 2 3 3 3 5 7 9 11 12 XIV; N. y. CONST. I ART. I I § 6. 12 A. Penal Law§ 265.01(1) Requires the People to Prove that Possession is Both Knowing and Voluntary. . . . . . . 13 B. Knowing and Voluntary Possession of a Weapon Under P.L. §265.01(1) Includes the Awareness that the Object Has the Characteristics of the Prohibited Weapon. . . . . . . 16 C. Whether the Possessor Is Aware that the Object Has the Characteristics of the Prohibited Weapon Is, in the First Instance, a Jury Question. 19 ii POINT II THE POLICE STOP AND SEARCH WAS ILLEGAL AS THERE IS NO BASIS IN THE RECORD FOR CHARACTERIZING MR. GONZALEZ'S ACTIONS AS "DISORDERLY CONDUCT," NOR CAN THE POLICE ACTIONS RATIONALLY BE CHARACTERIZED AS MERELY A LEVEL ONE OR TWO DEBOUR STOP. 23 Introduction 23 The Suppression Hearing Statement of Facts 25 Police Testimony 25 Mr. Gonzalez's Testimony 29 Oral Argument and the Court's Decision 29 Legal Argument 34 A. The court erred as a matter of law in holding that Nadel had probable cause to arrest Mr. Gonzalez for disorderly conduct because there was no basis in the record to support the inference that Mr. Gonzalez intended to harass or alarm the public or that he recklessly harassed or alarmed the public such that risk of public disorder was imminent. B. The hearing court's alternative justification that this was at most a level two common law inquiry was incorrect because Nadel's stop of Mr. Gonzalez exceeded, as a matter if law, the scope of the minimal intrusion that would be permitted for an officer to confirm or 37 refute a founded suspicion. 45 C. Contrary to the hearing court's decision, given the level of intrusion, the stop cannot alternatively be deemed a level one approach for information. 47 CONCLUSION 49 PRINTING SPECIFICATIONS STATEMENT lA lll TABLE OF AUTHORITIES Federal Cases Morissette v. United States, 342 U.S. 246 (1952) . . . . . . . . . . 18 Staples v. United States, 511 U.S. 600 (1994) ............. 17 Terry v. Ohio, 392 U.S. 1 (1968) ...................... 44, 45 United States v. Irizarry, 509 F. Supp. 2d 198 (E.D.N.Y. 2007) .................................. 19, 20 State Cases Farkas v. State, 96 Misc. 2d 784 (Ct. Cl. 1978) ........... 37 People v Hicks, 68 N.Y.2d 234 (1986) ...................... 45 People v. Ansare, 96 A.D.2d 96 (4th Dept. 1983) 17 People v. Baker, 20 N.Y.3d 354 passim People v. Berrier, 223 A.D.2d 456 [1st Dept. 1996], lv denied 88 N.Y.2d 876 [1996] ............... 11, 16, 17 People v. Best, 57 A.D.3d 279 (1st Dept. 2008) 16 People v. Bora, 83 N.Y.2d 531 (1994) ...................... 45 People v. Cantor, 36 N.Y.2d 106 (1975) ............ 35, 45, 46 People v. Cohen, 57 A.D.2d 790 (l5t Dept. 1977) 15 People v. DeBour, 40 N.Y.2d 210 (1976) ........ 34, 35, 36, 45 People v. Dietze, 75 N.Y.2d 47 (1989) ..................... 38 People v. Ford, 66 N.Y.2d 428 (1985) .................. 13, 15 People v. Hollman, 79 N.Y.2d 181 (1992) ....... 34, 35, 36, 47 People v. Jones, 9 N.Y.3d 259 (2007) ...................... 41 People v. LaFontaine, 92 N.Y.2d 470 (1998) ................ 35 People v. Mcintosh, 96 N. Y. 2d 521 (2001) . . . . . . . . . . . . . . . . . 24 People v. McRay, 51 N.Y.2d 594 (1980) ..................... 37 People v. Munafo, 50 N.Y.2d 326 (1980) .................... 40 People v. Munoz, 9 N.Y.2d 51 (1961) ................... 18, 21 People v. Neal, 79 A.D.3d 523[1st Department 2010], lv denied 16 N.Y.3d 799 [2011] ................... 11, 16 People v. Nieves, 67 N.Y.2d 125 (1986) .................... 35 People v. Perry, 265 N.Y. 364 (1934) ...................... 41 iv Peo12le v. Persce, 204 N.Y. 397 (1912) . . . . . . . . . 13, 15, 17, 19 Peo12le v. Pritchard, 27 N.Y.2d 246 (1970) . . . . . . . . . . . . . . . . . 41 Peo12le v. Robinson, 95 N.Y. 2d 179 (2000) . . . . . . . . . . . . . . . . . 16 Peo12le v. Samuels, 50 N.Y.2d 1035 (1980) . . . . . . . . . . . . . . . . . . 44 Peo12le v. Saunders, 85 N.Y.2d 339 (1995) . . . . . . 13, 15, 18, 19 Peo12le v. Small, 157 Misc.2d 673 (N.Y.Sup. 1993) 18 39 Peo12le v. Tichenor, 89 N.Y.2d 769 (1997) Peo12le v. Visarities, 220 App. Div. 657 (1st Dept. 1927) ............................. 15, 17, 18 Peo12le v. Weaver, 16 N.Y.3d 123 [2011] ................ 34, 41 Peo12le v. Wood, 58 A.D.3d 242 (1st Dept. 2008) 16 See User review of the Husky 2-In-1 ................... 22, 23 Federal Statutes U.S. Const., Amends. IV, XIV .......................... 12, 49 State Statutes 18 Pa. Cons. Stat. Ann. § 908 (West) ...................... 22 C.P.L. § 130.20 C.P.L. § 140.10 C.P.L. § 150.20 C.P.L. § 240.20 C.P.L. § 470.05 37 37 37 34, 38, 39, 45 35 C.P.L. § 470.15(1) ........................................ 35 Cal. Penal Code§ 17235 (West) ............................ 23 N.J. Stat. Ann. § 2C:39-3 (West) .......................... 22 N.Y. Const., Art. I, § 6 N.Y. Const., Art. I, §12 Penal Law § 15.00 (2) 12 49 13 Penal Law§ 265.01(1) ................................. passim Penal Law§ 265.01[1] Penal Law§ 265.02(1) Penal Law §§ 15.10, 15.00(2) v 15 1, 12, 20 13 Penal Law § 240.20 34, 38 Other Authorities Greenberg, New York Criminal Law, §33.8, p. 1567 .......... 16 vi COURT OF APPEALS STATE OF NEW YORK ----------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RICHARD GONZALEZ, Defendant-Appellant. ----------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Pigott, Jr., Associate Judge of the Court of Appeals, granted April 21, 2014, 1 this appeal is taken from an order of the Appellate Division, First Department. That order, entered December 5, 2013, affirmed with opinion a judgment of the Supreme Court, New York County, rendered May 24, 2012, convicting appellant, after a jury trial, of criminal possession of a weapon in third degree (P.L. §265.02[1]). Appellant was sentenced to an indeterminate 3~ to 7 year prison term (Farber, J., at hearing; Nunez, J., at trial and sentence.) The issues herein were preserved for appellate review at A. 248-250 (POINT I) and A. 59-72 (POINT II). On June 5, 2014, this Court assigned Robert S. Dean, Center for Appellate Litigation, as counsel. 1 The order granting Leave to appeal is set forth in the Appendix at A. 1. Numbers preceded by "A" refer to the Appendix. 1 No motion was made for a stay, and appellant is incarcerated pursuant to the judgment. He had no co-defendants. QUESTIONS PRESENTED 1. Whether the court's charge, over objection, that to be guilty of knowingly possessing a "gravity knife," appellant only had to know he had "the knife" that he bought legally at Home Depot, deprived Mr. Gonzalez of due process. 2. Whether Officer Nadel' s stop of Mr. Gonzalez was illegal despite all three justifications the court offered because there was no hearing evidence that Mr. Gonzalez was engaged in any criminal activity resembling disorderly conduct. INTRODUCTION Mr. Gonzalez was sentenced to 3~ to 7 years in prison for carrying to work a Husky brand utility knife he bought legally at Home Depot in 2009. The jury was instructed that, regardless of whether he knew that the tool could open like a "gravity knife," its mere possession constituted third-degree weapon possession. Such an outcome was never contemplated by the Legislature. Mr. Gonzalez was arrested after briefly shouting at three uniformed police officers in a busy subway station. Although this behavior was not directed towards any bystanders, one of the officers pursued and restrained Mr. Gonzalez in order to issue a summons for disorderly conduct. After initiating the 2 stop, the officer "peered into" Mr. Gonzalez's rear pants pocket, pulled out the knife, and flicked it open with one hand. STATEMENT OF FACTS Trial 2 People's Case In the trial assistant's opening, she told the jury that though the knife in this case "may look like a regular folding knife, 3 what makes a knife a gravity knife is how it operates, built to open very quickly by flicking your wrist and then it locks into place automatically" (A.117-118) . 4 The jury would see 2 The statement of facts relevant to the hearing issue raised in Point II is contained within the Point itself. 3 Appellate counsel has viewed People's trial Exhibit One, the Husky brand utility knife, and can confirm that it looks like a common utility tool a laborer or do-it-yourselfer would purchase at a Home Depot. 4 The Husky utility knife in this case and others like it were sold legally in New York City at several major retail chains up until June 2010 (A.94-95). In June 2010, District Attorney Vance negotiated a settlement between the City and several major retailers, whereby the retailers agreed to stop selling certain utility knives that the city had deemed to fall under the statutory definition of "gravity knife." The stores paid a settlement of $1. 9 million to the city, and no officer or executive of any of those stores was ever prosecuted for selling an illegal instrument (A.95-99). The prosecutor would not stipulate that the knife was purchased legally and openly in Home Depot (A.97-98). Prior to trial, defense counsel unsuccessfully requested that the court sign a subpoena to require District Attorney Vance to testify as to the terms of the $1. 9 million settlement (A. 76). Defense counsel argued that if this were a pure strict liability offense in the manner proposed by the prosecution, the individuals associated with the sale of those knives should have faced the same consequences as Mr. Gonzalez (A. 96-97). The court reasoned that "the only thing I can think of why they did that is that they couldn't defend it was a gravity knife" (A.96-97). Defense counsel repeated that the settlement was germane to the issue of whether the knife Mr. Gonzalez bought at Home Depot was actually a gravity knife (continued ... ) 3 how the knife opened like a gravity knife; the only other thing she must show is that Mr. Gonzalez possessed that knife (A.118). She outlined, as she had during jury selection, that she was not required to prove "where he was going, what he was going to do, where he got it, whether he knew how to open it as a gravity knife or that it was a gravity knife" (A.118). She then repeated that she was not required to show he knew how to open the knife in the manner the officers would demonstrate, and only had to prove that he had it and that it was a gravity knife (A.119). Sergeant Ian Nadel and Officer Leonid Shatkin were standing inside the 125th Street and Lexington Avenue subway station, at the base of the stairs, in uniform, with Officer Stanley Tuccio when Mr. Gonzalez exited the downtown train and started cursing and waving his arms at the officers, saying "fuck the police" (A.128-129, 162-163, 168). Mr. Gonzalez walked past them up the stairs towards an upper platform (A.131, 164-165). Nadel followed behind him, and Shatkin and Tuccio followed after Nadel (A.173). Arriving on the upper platform, Nadel saw Mr. Gonzalez on the edge of the platform waiting for a train. Nadel approached and had him step to the middle of the platform in order to issue him a summons for disorderly conduct. Nadel, following directly 4 ( ••• continued) (A.98-103). 4 behind Mr. Gonzalez, observed a knife in his right rear pocket. Nadel reached in and took it out. Nadel was able to wrist-flick out the blade (A.130, 136). When Shatkin arrived on the next level, Nadel already had Mr. Gonzalez turned around, arms stretched out in front, his hands on a garbage can (A.166-167). Nadel had the knife in his hand and handed it to Shatkin who was able to flick the blade out with one hand (A.166-168). At the prosecutor's request, Shatkin demonstrated how he was able to open it this way (A.173). Nadel also demonstrated how he could open the knife (A.140). On cross, counsel inquired into the officer's familiarity with the Husky brand of tools and familiarity with the kind of utility knives sold at Home Depot (A.143-144). Defense counsel asked to see the knife, and was unable to open it with one hand as the officer had done, saying "[a]m I doing this right? I'm trying to open this thing" before the court asked him to stop trying (A.158). Throughout the trial, only Nadel and Officer Shatkin were able to flick open the knife (A.150-151, 173). Defense Case Defense counsel called Mr. Gonzalez to the stand (A.188). Mr. Gonzalez had worked as an independent contractor since about 2003, primarily performing carpentry work around New Jersey, the Bronx, and Brooklyn (A.189). On April 14, 2011, he was commuting 5 to New Jersey to do a job for Lewis N. to replace doorknobs and work with sheetrock (A.190). Mr. Gonzalez was carrying a bag holding the doorknob assembly, and in his right rear pants pocket was his wallet and a Husky 2-in-1 combination utility knife that he purchased at Home Depot for about $10 in the summer of 2009 (A.190-191, 195- 196). Mr. Gonzalez purchased only Husky brand tools (A.191). This particular utility knife was especially suited for his usual carpentry and handyman work because it also has a retractable razor blade (A. 191) . He would use the razor for sheetrock, and the knife as a "coping saw" to make holes in sheetrock for sockets and light fixtures (A. 192) . The red button on the side released the blade to be changed out or sharpened (A.202). At about 10:40 am on April 14, 2011, Mr. Gonzalez exited the train and saw three uniformed officers blocking the bottom of the stairs (A.195-197). He approached, asked them to make way, and went up to await the next train (A. 194-19 6) . As he waited, Nadel approached and ordered him to turn around and stretch out his arms (A.195-197). Nadel reached into Mr. Gonzalez's back pocket and removed his wallet and the knife, stating "I got you" (A.197). Mr. Gonzalez asked what he meant and Nadel said he got him for having a gravity knife (A.197) Mr. Gonzalez responded "I don't have a gravity knife, I have a utility knife" (A.197). 6 Mr. Gonzalez was unaware that the knife was capable of being opened in the manner Nadel opened it, and unaware that this capability brought it within the prohibited category of knives the District Attorney's office began to include under the umbrella of "gravity knife" starting in June 2010 (A.199) 5 Mr. Gonzalez would open the blade with two hands (A.199) . 6 Summations In summation, defense counsel urged the jurors to put themselves in the position of a handyman who buys tool at Horne Depot for work, not realizing he has a "ticking time bomb" in his pocket, lest he at some point irritate a police officer and subject himself to arrest, prosecution and punishment (A.222). It was undisputed that Mr. Gonzalez had the knife for work and was on his way to use it for a job. At no point did anyone suggest that he had any illegal intent (A.224-226). The trial assistant closed by stating that their only burden was to show that Mr. Gonzalez had the knife and that the knife fit within the definition of a gravity knife (A.227). 5 Mr. Gonzalez did not testify that he ever received any notice that the common folding utility knife he legally purchased at Home Depot had since been deemed an illegal knife. There was no testimony that as part of the settlement with the city, retailers were required to provide notice to customers who had openly purchased those knives at Home Depot prior to the settlement with the city. 6 At trial Mr. Gonzalez was never allowed to hold the knife, and there was no evidence presented that he knew it could open with one hand or that he had the specific flicking ability that the trained officers did to make it open with one hand (A.199). 7 There was no doubt he possessed the knife when he was arrested, and that it was a gravity knife (A.229-230). The case came down only to whether the knife was capable of being opened in the manner demonstrated by the officers. Once the jurors saw the officers open the knife, "that is the case" (A.231). She went on to say that "anything beyond that is totally irrelevant to the issue of whether the defendant is guilty or not. It does not matter where the defendant was stopped, what he was wearing, why he had the knife, what he was doing with it. I don't have to prove those things to you because they are not elements of the statute which the judge is going to instruct you on" (A. 232). Furthermore, "there are no exceptions . [a]ny knife can be a gravity knife if it operates like one, it does not matter how big it is, it does not matter where it is made, what company made it, where it was purchased, if its original design or intention is to function as a gravity knife. It does not matter if the defendant were going camping or to work, it does not matter where he had it" (A.232). She didn't contest the fact that Mr. Gonzalez was using it for work "because it does not matter" (A.232). She went on to say, "[i]t does not even matter if the defendant could open the knife the way the police officer did or if he even knew that it could be opened that way, it does not matter" because "[a] gravity knife is a gravity knife [even] 8 in the hands of somebody who does not know how to open it like a gravity knife" (A.232-233). Charge, Verdict, and Sentence The court informed the parties it would be giving the standard charge for the third-degree weapon possession (A.216). The court defined a gravity knife as "any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which when released is locked in place by means of a button, spring, lever or other device" (A.242-243). It defined "knowing possession" to mean "that person is aware that he is in possession of such gravity knife" (A.243). In order to find the defendant guilty, jurors would have to find that Mr. Gonzalez possessed the gravity knife and that he did so knowingly (A. 243). The defense had no requests for modifications to the charge (A. 245). The People requested clarification of whether the defendant had to know the knife was a gravity knife. The court declined, believing the standard charge clear (A.245). Soon thereafter, the jury sent out a note asking, "did the defendant need to knowingly possess 'the knife' or 'gravity knife' " (A . 2 4 8 ) The court told the parties: "So I will tell them the defendant needs to knowingly possess the knife" (A. 248). 9 Defense counsel argued that "possession involves an element of knowledge. In my respectful submission a proper instruction to this jury would be along the lines that the defendant has to know that he possessed an instrument having its characteristics of a gravity knife. Otherwise . is to read a penal statute of being capable of punishing people for making mistakes" (A. 248). The court stated "[t]hat's not what the statute says. It's strict liability. The person does not have to know that it's, specifically, a gravity knife. He has to know that he possesses this knife, and this knife that he possesses is a gravity knife" (A.249). Counsel conceded that although First Department cases seem to say that, these cases were decided wrongly "because it renders the concept of possession meaningless, absent clear language in the statute to create a strict liability offense. The statute should be read as requiring proof of knowledge of the character of the instrument possessed" (A.249). The court disagreed and gave the jurors "[t] he simple answer to that question," that "the defendant needs to knowingly possess the knife" (A.250). After brief further deliberations, the jury returned a verdict of guilty (A.251). On May 7, 2012, Mr. Gonzalez moved prose to set aside the verdict based upon the court's charge that the jury need only find that the defendant knew he possessed a knife (A.258-260), 10 and not that he knew it had the characteristics of a gravity knife. The court told Mr. Gonzalez: THE COURT: Okay. [Defense counsel] did raise that issue and he requested the language that you specifically request and objected to or [excepted] to the response that I gave the jury. He has raised that issue so that you actually have preserved that issue on appeal. I am adhering to my initial ruling that my charge is correct and you can raise that on appeal so the motion to set aside the verdict is denied (A.257). At sentencing on May 24, 2012, the imposed 3~ to 7 years in prison. Appeal to the Appellate Division On appeal to the First Department, Mr. Gonzalez argued, inter alia, that the court's charge that, to be guilty by knowing possession, he only had to know that he possessed "a knife," was error. The Appellate Division held, in pertinent part: (A. 3) . The court properly instructed the jury that the knowledge element would be satisfied by proof establishing defendant's knowledge that he possessed a knife in general, and did not require proof of defendant's knowledge that the knife met the statutory definition of a gravity knife (see ~, People v. Neal, 79 A.D.3d 523, 524 [Pt Department 2010], lv denied 16 N.Y.3d 799 [2011]; People v. Berrier, 223 A.D.2d 456 [1st Dept. 1996], lv denied 88 N.Y.2d 876 [1996]). 11 ARGUMENT POINT I THE COURT'S CHARGE, OVER OBJECTION, THAT TO BE GUILTY OF KNOWINGLY POSSESSING A "GRAVITY KNIFE," APPELLANT ONLY HAD TO KNOW HE HAD "THE KNIFE" THAT HE BOUGHT LEGALLY AT HOME DEPOT, DEPRIVED MR. GONZALEZ OF DUE PROCESS. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, § 6. Mr. Gonzalez was convicted and sentenced to 3 ~ to 7 years in prison simply because the jury found he possessed, while on his way to work, a common workman's utility knife that he bought legally and openly at Home Depot in 2009. No legislative act or jurisprudence from this Court contemplates such a result. A person is guilty of criminal possession of a weapon in the fourth degree, P.L. § 265.01, when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star"; or 2) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another .... A person who has previously been convicted of any crime is charged with criminal possession of a weapon in the third degree, a D non-violent felony, and faces an indeterminate prison sentence of up to seven years. Penal Law§ 265.02(1). 12 A. Penal Law § 265.01 ( 1) Requires the People to Prove that Possession is Both Knowing and Voluntary. It is settled that, in order to convict a defendant of weapon possession under P.L. § 265.01(1), the People must prove that the defendant's possession is both "knowing" and "voluntary." People v. Persce, 204 N.Y. 397, 402 (1912). See also People v. Saunders, 85 N.Y.2d 339 (1995); People v. Ford, 66 N.Y.2d 428, 440 (1985); Penal Law§§ 15.10, 15.00(2); CJI 2d (N.Y.) Penal Law§ 265.01(1). The source of the knowing and voluntary possession requirement is Article 15 of the Penal Law. Section 15.10 provides, in relevant part: The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If such conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of "strict liability." But even with respect to offenses of "strict liability," a voluntary act includes "the possession of property" only "if the actor was aware of his physical possession or control thereof .... " Penal Law § 15.00 (2). In sum, even if § 265.01 (1) includes no express element of mental culpability, Article 15 nonetheless requires the possession to be a knowing and voluntary act. 13 Subdivision 2 of P.L. § 15.15 reinforces that the absence of an express mens rea element does not mean that none exists: Although no culpable mental state is expressly designated in a a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or all of the material elements thereof, if the proscribed conduct necessarily involves such a culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability. Here, there is no legislative history clearly indicating the absence of a mens rea requirement -- quite the contrary. McKinney's Practice Commentary for Article 265 notes that, while some of the weapon-possession statutes expressly require a "knowing" culpable mental state, others are silent (see Donnino, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law Article 265, Firearms and Other Dangerous Weapons, at 4 08) . But such disparate treatment, the Commentary goes on to say, is largely because all the former Penal Law weapon possession statutes, which, with rare exceptions, did not include an express mental state, were carried verbatim from the former into the present Penal Law statutes, while most of the ones added to the present Penal Law have incorporated the culpable mental state of "knowingly." Id. Thus, per the Commentary, the absence of an express culpable mental state in § 265.01(1) is the result of drafting history, not legislative design. 14 Furthermore, this State's case law interpreting § 265.01 over the last 100 years has required possession to be both knowing and voluntary. In People v. Persce, 204 N.Y. at 402, this Court, while upholding the Legislature's authority to criminalize mere possession of a weapon without intent to use, stated an important caveat: that the possession be a "knowing and voluntary one." Id. Moreover, in People v. Visarities, 220 App. Div. 657, 658 (1st Dept. 1927), a prosecution for possession of a "bludgeon," the court held that "[p]roof of intent to use is not an ingredient of the crime .... Mere possession of the prohibited instrument, known and voluntary, constitutes the offense"(emphasis added). See also, People v. Saunders, 85 N.Y. 2d at 341-342 ("the corpus delicti of weapons possession under Penal Law§ 265.01[1] is the voluntary, aware act of the possession of a weapon") ; People v. Ford, 66 N. Y. 2d at 4 4 0 ("Possession third requires only that defendant's possession be knowing"); People v. Cohen, 57 A.D.2d 790, 791 (Pt Dept. 1977) (court erred in failing to instruct that weapon possession must be "knowing"); CJI 2d(N.Y.) Penal Law§ 265.0l(l)n.2. This is compelling evidence that the Legislature did not intend § 265.01(1) to lack a mens rea requirement. Despite this case law, the Legislature, although amending the statute a number of times, has never seen fit to legislate away the mens rea requirement. construction, the Legislature 15 Under principles of statutory is presumed familiar with decisional law, and thus its failure to eliminate the judicially recognized mens rea requirement is strong evidence that it accepts that element. ~' People v. Robinson, 95 N.Y. 2d 179, 184 (2000); McKinney's Cons. Laws of N.Y., Book 1, Statutes§ 191, comment("The Legislature will be assumed to have known of existing statutes and judicial decisions in enacting amendatory legislation"). B. Knowina and Voluntary Possession of a Weapon Under P.L. §265.01(1) Includes the Awareness that the Object Has the Characteristics of the Prohibited Weapon. In light of the above case law, even the First Department, in People v. Wood, 58 A.D.3d 242 (l8t Dept. 2008), recognized that, under P.L. §265.01(1), the possession must be both knowing and voluntary. In Wood and a long line of cases, however, the First Department has also held that knowing and voluntary possession of ~' a gravity knife, need only entail the possessor's knowledge that he possesses any knife, not the knowledge that it has the characteristics of a gravity knife. Wood, supra, at 249; the court's seminal case in the area is People v. Berrier, 2 2 3 A. D. 2 d 4 5 6 (pt Dept. 19 9 6) . See also, People v. Neal, 79 A.D.3d 523 (l8t Dept. 2010); People v. Best, 57 A.D.3d 279 (l8t Dept. 2008) The Berrier holding has been criticized as being "of questionable validity." Greenberg, New York Criminal Law, 16 §33.8, p. 1567, n.12 (3d. ed., Thomson Reuters) . 6 In fact, the Berrier rule runs counter to the reasoning of Staples v. United States, 511 U.S. 600 (1994). Staples involved a prosecution for unlawful possession of a "machine gun," the definition of which included any fully automatic weapon. The Court held that the government was required to prove, not only that the weapon fired automatically, but also that the defendant knew that the weapon had the characteristics that brought it within the statutory definition of a machine gun, to wit: that it fired automatically. The Court noted "that offenses that require no mens rea generally are disfavored," and that dispensing with mens rea requires clear legislative intent to do so. 606. Non-mens-rea crimes should be limited to "public welfare" or "regulatory" offenses involving possession of outwardly- appearing noxious or injurious objects -- which description does not include firearms and limited as well to non-felony offenses with light penalties, not state prison. Id. at 606- 607' 616-618. The Staples holding is consistent with this Court's jurisprudence. In People v. Persce, 204 N.Y. at 397, this Court held that criminalizing per se weapon possession should be limited to certain weapons based upon their "well-understood 6 Greenberg notes that one of the cases relied on in Berrier (People v. Visarities, 220 App. Div. 657 (1st Dept. 1927); People v. Persce, 204 N.Y. 397 (1912); People v. Ansare, 96 A.D.2d 96 (4th Dept. 1983)) addressed the scienter issue raised by the Berrier defendant. 17 character of dangerous and foul weapons seldom used for justifiable purposes but ordinarily the effective and illegitimate implements of thugs and brutes." Id. at 402. In People v. Munoz, 9 N.Y.2d 51 (1961), a prosecution of a minor for simple possession of an ordinary penknife on a public street, the Court ruled that criminalizing per se possession of objects should not apply to "a tool of everyday use," but be limited "to instruments that are not likely . . . to be found in the possession of innocent parties and whose [a]ccidental and innocent possession would be extraordinary and unusual." Id. At 59-60. Accord, People v. Visarities, 220 App. Div. at 658 ("To base a conviction on mere possession it must clearly appear that the thing possessed answers the description of one of the prohibited instruments or weapons."); People v. Small, 15 7 Misc . 2 d 6 7 3 ( N . Y . Sup . 19 9 3 ) ( same ) . In other words, this Court has already recognized that, to criminalize mere possession of an object, its inherent "dangerous and foul" nature, Persce at 402, should be apparent to the possessor. 7 People v. Saunders, 85 N.Y.2d 339 (1995), is not to the contrary. The issue in Saunders was whether attempted possession of a "firearm" under P.L. §265.01(1) was a cognizable offense, since possession of a firearm was a "strict liability" offense. This Court held that whether the offense was termed 7 See also, Morissette v. United States, 342 U.S. 246, 250 (1952) (due process requires proof of some awareness of wrongdoing before the imposition of criminal sanctions). 18 one of "strict liability" did not control, as the possession of the firearm still had to be "knowing." What was important, the Court held, was the defendant's "requisite underlying awareness" or mental "frame of reference," which, in that case, presented a clear "danger." In Saunders, the weapon was a "firearm," an obviously dangerous object which, under New York Law, could not be innocently possessed with lack of awareness of its inherent character even if it turned out to be inoperable. Mr. Gonzalez's case involves neither a "firearm" nor any other outwardly "foul" or "illegitimate" object, Persce, 204 N.Y. at 402, "ordinarily used for criminal and improper purposes," id. at 403, but a legally-purchased, widely-sold, common workman's tool. 8 C. Whether the Possessor Is Aware that the Object Has the Characteristics of the Prohibited Weapn Is, in the First Instance,a Jury Question. Where a person possesses a firearm or, ~' metal knuckles, chuka sticks, or "Kung Fu stars," the "knowing" nature of the possession will likely be obvious. Given their outward appearances, such objects can hardly be innocently possessed. 8 "The Husky is a top selling product at Horne Depot. Its New York State stores sold 67,341 Huskies in fiscal year 2006 for a total of $587,540.00; from January 2007 through July 2007 it has sold 36,441 Huskies for $294,116.00." One expert has testified "that Husky is a Horne Depot brand; that identical or nearly identical instruments are sold under a variety of brand names, including Sheffield; and they are sold by other major retailers. The manufacturer of the instrument sold under the Sheffield brand name indicated in a letter submitted to the court that it sold 1,765,091 similar folding lock-back utility knives nationally in 2006." United States v. Irizarry, 509 F. Supp. 2d 198 203-04 (E.D.N.Y. 2007). 19 But such objects and other "per se" weapons identified in P. L. §265. 01 ( 1) are in stark contrast to the widely available "common utility knives that are neither designed nor manufactured as gravity knives [that] fit the technical definition of a gravity knife because an adept user can open them by the use of centrifugal force. These tools, designed for cutting sheet rock, carpeting and window screens have become popular tools widely circulated in general commerce by large retail stores such as Home Depot. In 2006 alone, one manufacturer sold over 1.7 million nationwide." Report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrator of the Courts of the State of New York, page 205 (2014) . 9 These tools "are still widely available in the tri- state area and throughout most of the country." Id. In United States v. Irizarry, 509 F. Supp. 2d 198, 203-04 (E.D.N.Y. 2007), the court overturned the conviction of a defendant who was found in possession of a handgun after an officer spotted a Husky utility knife in his pocket that the 9 The OCA Advisory Committee has recommended that P.L. §265.15 be amended to provide an affirmative defense to criminal possession of a gravity knife if the defendant can show the item is possessed for innocent purposes, such as in connection with his or her employment. Further, given these kind of knives' widespread use and design for innocent uses, State Senator Diane Savino proposed in February 2013 an amendment to 265.02 to move "gravity knife" to the second subsection of the statute, as an item requiring proof of unlawful intent. As of this writing, state bill S3686-2013 has been referred to the Senate Codes Cammi ttee. New York Senate Open Legislation, available at 20 officer was able to open using centrifugal force. In deciding the officer lacked probable cause to search the defendant, the court stated that "[t]he instrument which defendant had in his possession is a common tool. Its open possession is the equivalent of a carpenter carrying a hammer or an individual in the street carrying a cellular phone. The law cannot define as criminals tens of thousands of mechanics who are required to carry such tools in order to earn a living" Id. at 209. 11 As in Irizarry, the utility knife here had none of the outward thug-and-brute qualities that would justify equating it with firearms, blackjacks, or "Kung Fu Stars". The Husky utility knife in this case is an ordinary tool possessed by "tens of thousands of [workers] who are required to carry such tools in order to earn a living." Irizarry, 509 F. Supp. 2d at 209. Nobody disputes that Mr. Gonzalez possessed the knife for innocent purposes. Possessing such a knife for innocent purposes could hardly be considered "extraordinary and unusual," as it would be for a true 'per se' weapon. Munoz, 9 N.Y.2d at 59-60. Nothing in its outward appearance would put the possessor on notice of potential regulation, nor was Home Depot required to provide notice to the tens of thousands of customers 11 "Support for this conclusion lies in the initial exemption in the New York law for the carrying of switchblades for professional or trade purposes. The fact that the exemption was later abolished when it was determined that switchblades have no legitimate purpose demonstrates that New York banned only those items which are manufactured as weapons." Irizarry, 509 F. Supp. 2d at 210. 21 to whom it had sold the knives that the District Attorney's office began to criminalize in June 2010. 12 Mr. Gonzalez was sentenced to 3~ to 7 years of incarceration for carrying a Husky utility knife he used for work and which he bought legally at Home Depot. The First Department's construction of the statute makes criminals of the tens of thousands of people who legally and openly purchased such knives before 2010, leading to consequences never within the contemplation of the Legislature. 13 12Importantly, the knife does not obviously operate as a gravity knife, as revealed by the fact that only the trained officers were able to open it in the prohibited fashion. While it is possible to open it with centrifugal force with sufficient practice, it is designed to be opened either with two hands or using a thumb to flick it open using a nub on the blade. Defense counsel tried without success to open it like a gravity knife numerous times. This cuts against the argument that its dangerous character was immediately apparent, as it would be necessary for it to fit the definition of a "per se" weapon and subject its possessor to criminal penalties. See User review of the Husky 2-In-1 Ultra-Thin Combination Knife, September 2007, available at 13 A small sampling of the law governing possession of gravity knives in other jurisdictions shows that on the evidence in this record (that he purchased the utility knife at Home Depot and used it for his employment), Mr. Gonzalez would most likely not have faced any criminal penalties in any other jurisdiction. For example, New Jersey requires that possession of any weapon, including gravity knives, be possessed "without any explainable lawful purpose." N.J. Stat. Ann. § 2C:39-3 (West). In Pennsylvania, it is only illegal to be found in possession of a knife "which serves no common lawful purpose," and even if a knife lacked any such purpose, possession is not illegal "under circumstances . . negativing any intent or likelihood that the weapon would be used unlawfully." 18 Pa. Cons. Stat. Ann. § 908 (West) . The California Legislature includes gravity knives in the category of switchblade knives, and specifically excludes from this category "a knife that opens with one hand utilizing thumb pressure (continued ... ) 22 Accordingly, this Court should reverse and remand for a new trial upon a proper jury instruction. The issue is fully preserved by counsel's objection to the supplemental charge - a charge clearly key to the jury's verdict. POINT II THE POLICE STOP AND SEARCH WAS ILLEGAL AS THERE IS NO BASIS IN THE RECORD FOR CHARACTERIZING MR. GONZALEZ'S ACTIONS AS "DISORDERLY CONDUCT," NOR CAN THE POLICE ACTIONS RATIONALLY BE CHARACTERIZED AS MERELY A LEVEL ONE OR TWO DEBOUR STOP. Introduction While probable cause determinations are normally "mixed questions of law and fact," limiting this Court's review, when a "probable cause issue distills to whether, viewed in the light most favorable to the People, the defendant's statements and associated conduct witnessed by the police officer constituted the crime of disorderly conduct, justifying an arrest on that charge," there is a question of law reviewable by the Court. People v. Baker, 20 N.Y.3d 354, 359n (2013). 12 ( ••• continued) the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position," Cal. Penal Code § 17235 (West) , a description that would include the Husky Combination 2-in-1 utility knife that Mr. Gonzalez used for work. (See User review of the Husky 2-In-1 Ultra-Thin Combination Knife, September 2007, available at .) 23 Here, viewing the hearing evidence, recounted below, in the light most favorable to the People, Mr. Gonzalez did not come close to committing disorderly conduct. He broke no laws when he momentarily shouted obscenities at three uniformed officers at the bottom of the staircase in a busy New York City subway station. The interaction was brief, lasting only the span of time it took him to walk the five to 10 feet from the train to the stairs and then up the stairs. Al though he "continued talking about the conduct of the officers" as he went up the stairs, some people stepped aside, and some people on the platform turned to look out of curiosity, this was an individual interaction between a private citizen and an officer, with no potential to deteriorate into a scene of public disorder. Mr. Gonzalez did not touch anyone, incite anyone, seek to engage anyone, threaten anyone, nobody made any complaint to the officers, and the entire incident was over once he had gone up the stairs. When Nadel approached him to detain him and issue a summons, Mr. Gonzalez was waiting alone for the next train, no longer making gestures or talking to anybody. Despite no actual or potential disorder, Nadel prevented Mr. Gonzalez from boarding a train, moved him to the middle of the subway platform, and initiated an unlawful arrest. Moreover, there is no support in the record, People v. Mcintosh, 96 N. Y. 2d 521, 524 (2001), for characterizing the 24 officer's actions, alternatively, as a level-one or level-two DeBour stop. The Suppression Hearing Statement of Facts On April 14, 2011, Richard Gonzalez was on his way to perform maintenance work for Lewis N. in Englewood, New Jersey (A.39-40). To get there from the Bronx, he normally started out taking the #6 Lexington Avenue local downtown to the 125th and Lexington station where he connected to another train (A.39-40, 4 8) • Mr. Gonzalez had worked for Mr. Newkirk for about seven years, performing plumbing, carpentry, sheet-rocking, and similar jobs (A.39-40). On this day, Mr. Gonzalez was going to install a doorknob at Mr. Newkirk's personal residence, and was carrying door locks and knobs in a bag, as well as his wallet, cell phone, and the Husky utility knife he always carried with him to maintenance jobs (A. 4 0) . Mr. Gonzalez had legally purchased it as a utility knife off the shelf at the Home Depot in the Bronx (A.58). Police Testimony At about 10:40 a.m., Sergeant Ian Nadel was on the lowest- level platform of the 125th and Lexington station, with two of his officers (A.10) . The three uniformed officers were congregated near the base of the stairs leading up to the next level when Nadel's attention was drawn to Mr. Gonzalez exiting a southbound train about five to 10 feet away. He "began shouting obscenities at myself and my officers" while "[t]alking 25 with his hands, hands above his head, moving his arms side to side, back and forth," saying "just because you are the fucking police does not mean you could block the staircase, who the fuck do you think you are" (A.10-12, 24-25). He was "walking at a regular pace" and his voice was "louder than his regular speaking tone" and he "sounded angry" (A.12-13). His attention focused on Mr. Gonzalez, Nadel paid no attention to the other people getting off the train (A.25). As Mr. Gonzalez was making these statements to the police, there were 20 to 30 people in the immediate vicinity; however, Mr. Gonzalez was only looking at Nadel and the other officers (A.11, 25-26). Mr. Gonzalez was speaking loud enough to "draw the attention" of "people standing on the far side of that same platform," but not the people standing on the other platform (A.13) . Nadel noticed that some people "were not facing our direction at first, then they began to turn their heads and looks on their faces of surprise, curiosity of what was going on" (A.13-14). After Mr. Gonzalez shouting at other people walked past the on the stairs, officers, he began "who do [the police] think they are, what do they think they are doing," and people moved out of his way (A.14-15). Mr. Gonzalez continued up the stairs. Nadel had no memory of him looking back at the officers (A. 2 9) . When he was about halfway up the staircase, Nadel started to follow him, and continued following until he saw him 26 waiting at the northbound platform on the next level (A.15, 29). Nadel did not see any bulge or anything else suspicious about Mr. Gonzalez as he walked up the stairs (A.29). Nadel conceded that Mr. Gonzalez was not trying to engage other subway riders, did not touch anybody, did not stop to talk to anybody and did not make any dangerous gestures towards the officers (A.27-28). There was no testimony that anyone stopped, congregated, or made any complaint to the officers. Nadel also conceded that he was "well aware . that a person can use his freedom to curse police officers if he cares to" and "that is not a reason to arrest somebody" (A.26). Nadel approached Mr. Gonzalez where he was waiting for the uptown #5, testifying that "[a]s I approached him I told him to step to the middle of the platform . [b]ecause I was going to have one of my officers write him a summons for disorderly conduct" and conduct a warrant check (A.15-16). As Nadel approached, Mr. Gonzalez was facing half towards him and half towards the tracks (A.30-31). There was no testimony that Mr. Gonzalez was still speaking, making gestures, or drawing any attention to himself. Nadel conceded that he "walked up to him and prevented him from getting on a train" and "told" Mr. Gonzalez to move to the middle of the platform in order to "have one of [his] officers write him a summons for disorderly conduct" (A.15-16, 30-31). 27 Mr. Gonzalez "complied and stepped towards the center of the platform" (A. 16) . Nadel was thus "not permitting him to leave," and "restricting his movements" because "[h]e was going to receive a summons" (A.30-31). Nadel did not make any inquiries or request any information before restricting Mr. Gonzalez's freedom of movement. The only verbal communication was telling Mr. Gonzalez to step to the middle of the platform (A.15). After Nadel told Mr. Gonzalez to move and positioned himself "inches" away, "directly behind his back," Nadel observed that "something obstructed his wallet from touching his person," creating a space of one to two inches between Mr. Gonzalez's wallet and his person (A.16-18, 35). While this in itself was not suspicious, Nadel leaned over and "peered into" Mr. Gonzalez's right rear pants pocket and saw "the base, the red button, and part of the clip" characteristic of a switchblade (A.17-20, 36). Without asking any questions, Nadel reached into Mr. Gonzalez's pants pocket and pulled out the wallet and the Husky utility knife (A. 34). He did this "for safety reasons" and because "a switchblade is illegal in the New York State Penal Law and all knives are prohibited in the New York State transit system" (A. 19-2 0) . Nadel decided it was a gravity knife, and handed it to Officer Shatkin (A.20-21). 28 Mr. Gonzalez's Testimony Mr. Gonzalez exited the downtown # 6 train at 12 5th and Lexington and went towards the staircase leading up to the next level to get the uptown #5 for the next leg of his work commute. As he approached the staircase he saw Nadel and two other uniformed officers congregated at the base of the stairs, blocking the way and making it impossible to get past without brushing up against them (A.52). Mr. Gonzalez approached Nadel and confronted him about blocking the stairs; the officers moved aside. "[T]hat was all there was to it" until they approached him on the upper level and the sergeant yelled at him to turn around (A. 44, 52, 53-54). He complied and asked them what he had done wrong (A.46). Another officer grabbed his bag containing the door knobs and another officer ordered him to put his hands out, searched his pockets, then took the utility knife out and said "boom, oh, I got you." The officers then handcuffed him (A.45-46). At no time was Mr. Gonzalez issued a summons or charged with disorderly conduct. Prior to oral arguments, both parties stipulated that Mr. Gonzalez had a criminal record (A.48). Oral Argument and the Court's Decision Following the testimony, defense counsel argued that Mr. Gonzalez was not engaged in any illegal activity; counsel had a letter from his employer (A.297) attesting that Mr. Gonzalez was in fact on his way to perform maintenance work for him in New 29 Jersey (A. 5 9) . Even if the court were to completely credit Nadel's testimony, the knife must be suppressed because Nadel lacked sufficient cause to arrest or detain Mr. Gonzalez to issue him a summons for disorderly conduct, which under DeBour would require probable cause (A.60). Prior to restricting his freedom of movement, the officers did not have probable cause to suspect him of any criminal activity and he should have been allowed to get on the train and on his way (A. 60-61). The summons was a pretext for overreacting police officers to follow and search Mr. Gonzalez as punishment for directing obscenities towards them (A.60-61). Counsel reiterated that Mr. Gonzalez had a constitutional right to yell at police officers, who are trained not to overreact by arresting people who yell at them (A. 60). The officers "had no reason to believe he was committing any crimes or that criminal activity was afoot in terms of the DeBour analysis, they were just angry at his obscenities to them, and in order to punish him, they took him and searched him and found this knife" (A.61). The court stated that if the officers' testimony were credited, "they are not reacting to obscenities that your client is directing at them, that your client is directing the obscenities in a manner that is causing concern to other passengers and therefore acting disorderly" (A.61-62). Counsel responded that it is for the court to decide whether the facts 30 are sufficient to establish that the officers had probable cause to detain Mr. Gonzalez, and that it is not a determination to be left to the off ice rs themselves (A. 62) . That other people happened to overhear obscenities directed at the officers did not justify issuing a summons (A. 62) . There was no testimony that Mr. Gonzalez was bothering anyone or directing obscenities at other people, and Nadel's opinion that people may have been disturbed is not sufficient (A.62). In counsel's view, there was no justification for the intrusion "under any [DeBour] analysis," in that there was nothing at all suspicious about Mr. Gonzalez (A.62-63). The People argued that it was irrelevant whether Mr. Gonzalez had any illegal intention with the knife, pointed to his criminal record, and argued that Nadel was only reacting to "conduct which he believed needed to be addressed in the subway station" (A.63-64). Further, Nadel had probable cause to arrest Mr. Gonzalez the moment "when he initially stepped off the train," because he was "shouting and screaming," creating "unreasonable noise" such that people "looked shocked or surprised" (A.64). He also "used the word fuck while directing to the officers in a public place" (A.65). The People recognized that this behavior by itself "is not a crime unless the last piece of disorderly conduct is satisfied as well, which is that that conduct creates a public annoyance or alarm or creates risk thereof" (A.65). They argued that this 31 element was satisfied because "people moved away from the defendant because of what he was shouting at the police officers as he continued to shout as he was walking up the stairs, that other people were trying to move on the staircase as well and they got out of the defendant's way because of his conduct" and "that alone" gave Nadel probable cause to arrest him, "certainly definitely to approach him and frisk him for weapons for his own personal safety" (A.65). The People then argued that "even if" the police did not have probable cause to arrest at that point, it was enough to approach Mr. Gonzalez and "at least question him, speak to him about the way that he was behaving, at least level one" (A.66). They stated that "the Court of Appeals has held that an officer can request an individual to stop so that the officer can approach and request information and if the language used by the officer to get the individual to stop constitutes a general non threatening type of encounter, so it does not rise to the level of DeBour one [sic] common law inquiry" (A. 66-67). The court clarified that the People must mean that the officer's conduct did not rise to level two, because "it does rise to the level one." The People agreed this is what they meant, but regardless, even though Nadel did have probable cause to arrest, all he actually did was approach to inquire (A.67). The court stated that "some part of this decision rests on credibility," and determined that Nadel was credible and Mr. 32 Gonzalez was not, because his "record speaks for itself" (A.69). The court found that when Mr. Gonzalez got off the train, he shouted obscenities at the police because they were blocking the stairway, then he passed them and proceeded up the stairs, where he continued "talking about the conduct of the officers" (A.70). At that time Nadel saw people "looking around and therefore believed that the defendant was acting in a disorderly manner, and followed him upstairs. He intended to give him a summons for disorderly conduct" (A.70). Nadel approached Mr. Gonzalez as he waited for the uptown #5, asked him to move to the middle of the platform, and he complied (A.70-72). The court determined that: The police did have probable cause to arrest the defendant based upon the conduct in the subway. While it is of course not a crime to talk back to or even curse at a police officer, when the conduct is done in the manner described by the sergeant, it is sufficient to cause alarm to the passengers on the subway station and the officers have the right to react and issue a summons. Indeed, they have the right to arrest, although they did not intend to do that. The request to the defendant to move away from the platform was at most an exercise of common law right to inquire, but was more likely construed as the simple request for information that would be appropriate under a level one stop, but certainly the officer has probable cause to arrest. So they were actually entitled to take the defendant into custody if they wanted to (A.70-71). Further, the court concluded, it did not matter if Nadel thought the knife was a switchblade rather than a gravity knife, 33 and denied Mr. Gonzalez's motion to suppress in all respects (A.72). On appeal to the Appellate Division, that court ruled, as to the suppression issue: (A.2-3). The court properly denied defendant's suppression motion. The officer had probable cause to arrest defendant for disorderly conduct. At the very least, defendant recklessly created a risk of "public inconvenience, annoyance or alarm" (Penal Law §240.20) in a crowded subway station by loudly and angrily cursing police officers, violently waving his arms, screaming at passersby to complain of the police officers' conduct, and forcing subway riders to get out of his way. This escalated defendant's initially individual interaction with the police officer, so as to create a "potential or immediate public problem" (People v. Weaver, 16 N.Y.3d 123, 128 [2011]; compare People v. Baker, 20 N.Y.3d 354, 359 [2013]). We note that the evidence adduced at the at the hearing was only required to demonstrate probable cause to believe defendant had committed disorderly conduct, as opposed to a legally sufficient case or proof beyond a reasonable doubt. The record also supports the court's alternative grounds for denying suppression. Legal Argument In People v. DeBour, 40 N.Y.2d 210 (1976), the Court outlined four levels of constitutional police interference with private citizens and the degree of knowledge required to justify each escalating level of action. Id. at 222-23; People v. Hollman, 79 N.Y.2d 181 (1992) (reaffirming DeBour). 34 The most minimal intrusion, level one, is a request for information "when there is some objective credible reason for that interference not necessarily indicative of criminality." A level one predicate permits an officer to ask general questions about the person's identity or activities but does not permit an officer to interfere with the person's liberty of movement. DeBour, 40 N.Y.2d at 223; Hollman, 79 N.Y.2d at 190. Level two is a common-law inquiry, which "is activated by a founded suspicion that criminal activity is afoot." A level two predicate permits an officer to interfere with a person "to the extent necessary to gain explanatory information"for the purpose of confirming or refuting the suspicion, but does not permit a forcible seizure. DeBour, 40 N.Y.2d at 223; Hollman, 79 N.Y.2d at 184-85, 191. Where an officer has a "reasonable suspicion" that a person is committing, has committed, or is about to commit a crime, level three authorizes a forcible stop and detention. 14 DeBour, 40 N.Y.2d at 223; People v. Cantor, 36 N.Y.2d 106, 112 (1975) Where an officer has probable cause to believe that a person has committed a crime, they may arrest and 14 Since a "reasonable suspicion" justification for the stop was not raised by the prosecutor below, it is not preserved for review and should be precluded. See C.P.L. § 470.05; People v. Nieves, 67 N.Y.2d 125, 134-36 (1986). In addition, because the suppression court did not make a decision as to this argument, this justification cannot now be considered by this Court. See C.P.L. § 470.15(1); People v. LaFontaine, 92 N.Y.2d 470 (1998). Nevertheless, the stop cannot be justified as a level three forcible detention because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. DeBour, 40 N.Y.2d at 223; Cantor, 36 N.Y.2d at 112. 35 take that person into custody. Hollman, 79 N.Y.2d at 185. DeBour, 40 N.Y.2d at 223; There is no basis in the record for a finding that Nadel had probable cause to arrest Mr. Gonzalez for disorderly conduct. People v. Baker 20 N.Y.3d at 359n. The alternative justifications offered by the hearing court and accepted by the First Department were similarly baseless. Nadel's interference with Mr. Gonzalez far exceeded the scope of the minimal intrusion permitted incidental to a common law inquiry; moreover, as, "the the stop was not, nor could it rationally be construed simple request for information that would be appropriate under a level one stop" (A.71). These issues were preserved for review. Defense counsel argued that Nadel did not have probable cause because the People had not presented evidence of public harm, which is essential to support a charge of disorderly conduct. In the absence of any indication of criminality, Nadel was limited under DeBour to a level one request for information. Defense counsel also argued that when Nadel detained Mr. Gonzalez for the purpose of issuing a summons and running a warrant check, he exceeded the scope of both a level one request for information and level two common law inquiry (A.61, 62-63). 36 A. The court erred as a matter of law in holding that Nadel had probable cause to arrest Mr. Gonzalez for disorderly conduct because there was no basis in the record to support the inference that Mr. Gonzalez intended to harass or alarm the public or that he recklessly harassed or alarmed the public such that risk of public disorder was imminent. Detaining Mr. Gonzalez in order to issue a summons was equivalent to a warrantless arrest requiring probable cause. 15 A summons "serves the same purpose as a warrant of arrest, except that it contemplates defendant's appearance in obedience to process, rather than by physical custody." 16 Preiser, Practice Commentary, McKinney's Cons Laws of NY, Book llA, C.P.L. § 130.20. Probable cause to issue a summons must be based on "information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed." People v. McRay, 51 N.Y.2d 594, 602 (1980) 15 Officers often use the word "summons" to describe what is in fact a desk appearance ticket (DAT) . A summons and DAT serve the same purpose, though technically a summons can only be issued by a court, whereas an officer would be issuing a desk appearance ticket (DAT) to effect the same process. For the sake of consistency with the testimony, this brief will refer to the DAT as a summons. 16 If authorized to make a warrantless arrest under C. P. L. § 140.10, an officer may in his discretion issue a DAT instead. C.P.L. § 150.20. The purpose of C.P.L. § 150.20 was to expand the State-wide use of the "appearance ticket" to all those cases where a warrantless arrest would be permitted. Farkas v. State, 96 Misc. 2d 784, 788 (Ct. Cl. 1978). This discretion was given to officers as a public policy consideration in response to the problem of overcrowding in New York jails and to preserve scarce police resources, not to create a new instrument that requires a lower level of suspicion than would be required for a warrantless arrest. Preiser, Practice Commentary, McKinney's Cons Laws of NY, Book llA, C.P.L. § 150.20. 37 Under N.Y. Penal Law§ 240.20 A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: ( 1) He engages in fighting or in violent, tumultuous or threatening behavior; or (2) He makes unreasonable noise; or (3) In a public place, he uses abusive or obscene language, or makes an obscene gesture; or (4) Without lawful authority, he disturbs any lawful assembly or meeting of persons; or (5) He obstructs vehicular or pedestrian traffic; or (6) He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or (7) He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose. (McKinney's) (emphasis added). This Court recently held in People v. Baker, 20 N.Y.3d 354 (2013), that "[t]he significance of the public harm element in disorderly conduct cases cannot be overstated," and pointed out that in "virtually all" of the cases related to C.P.L. § 240.20 "the validity of disorderly conduct charges has turned on the presence or absence of adequate proof of public harm" specifically, the "intent to threaten public safety, peace or order (or the reckless creation of such a risk)." Id. at 356. The particular mens rea posited by the public harm element "performs an important narrowing function," without which the disorderly conduct statute is indistinguishable from the harassment statute struck down as unconstitutional in People v. Dietze, 75 N.Y.2d 47 (1989) because it "proscribed abusive or obscene face-to-face communication directed at indi victuals." 38 People v. Tichenor, 89 N.Y.2d 769, 775 (1997) (explaining distinction between unconstitutional harassment statute and constitutional disorderly conduct statute). The only element of C.P.L. § 240.20 that differentiates it from the unconstitutional harassment statute is that it "applies to words and conduct reinforced by a culpable mental state to create a public disturbance." Id. Baker has very similar facts to the instant case. In Baker, the defendant approached a police officer seated in his parked patrol car to ask why he was running license plates for the car in his driveway, which abutted a public thoroughfare bustling with people and traffic. When the officer told him he could run whatever plates he wanted, the defendant became belligerent and aggressive, shouting a string of obscenities at the officer while backing away from the car. As he was shouting at the officer, pedestrians in the vicinity stopped to watch until a crowd of about 10 people had congregated on the sidewalk. The officer radioed a second officer who was in another marked vehicle nearby to let him know he was about to make an arrest. He exited his car and during a search incident to arrest found a quantity of narcotics. The Court found that the officer had no probable cause to arrest him for disorderly conduct because this was a brief interaction between a private citizen and a police officer in a busy public thoroughfare, the defendant did not engage in any menacing conduct, there was no 39 risk of other people getting involved or of the officers being outnumbered or in any sort of danger, and despite his ongoing invective, the defendant was retreating from the car. Therefore everything that followed from the inception of the unlawful arrest should have been suppressed. Id. "[A] person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem." Id. at 356. The inference of public harm is undermined where "defendant's abusive statements were directed exclusively at a police officer, "a party trained to diffuse situations involving angry or emotionally distraught persons. [particularly where] the police officer was in a position of safety and could have ignored defendant." Id. at 358. Importantly, "isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the 'public harm' mens rea necessary to support a disorderly conduct charge." Id. at 358. A verbal exchange that attracts the attention of bystanders in a public place is not sufficient to lift a purely individual encounter to one creating a risk of public harm. People v. Munafo, 50 N.Y.2d 326, 331 (1980), nor is there public harm when people's attention is drawn to an indi victual dispute out of 40 curiosity or for entertainment value. Baker, 20 N.Y.3d at 357; People v. Pritchard, 27 N.Y.2d 246, 248 (1970); People v. Perry, 265 N.Y. 364, 365 (1934). Conduct that causes other people to step aside in order to let a person pass or that causes other people to walk around that person does not amount to public harm. People v. Jones, 9 N.Y.3d 259, 262 (2007) ("Something more than a mere inconvenience of pedestrians is required to support the charge.") An individual dispute can evolve into one posing a risk of public harm where the offending individual's conduct is escalating, expanding to involve more people, and defendant shows no signs of backing down despite numerous lawful orders from the police to desist. People v. Weaver, 16 N. Y. 3d 123 (2011) (arrest for disorderly conduct warranted where defendant's conduct towards his wife in the middle of the night in a quiet village parking lot outside a motel rapidly escalated into a very vocal and aggressive confrontation; officer warned defendant on three separate occasions to cease his conduct and leave the area and only initiated arrest after increasingly violent and belligerent defendant failed to heed final warning) . The incident here, similar to Baker, and in contrast to Weaver, amounted to no more than a momentary dispute between an individual citizen and individual police off ice rs in a busy public thoroughfare. Mr. Gonzalez was a lone individual momentarily expressing anger at three uniformed policemen in a 41 moderately busy New York City subway station. Despite directing a couple of comments about the officers' behavior towards other passengers as he passed them on his way up the stairs, nothing in his behavior would allow a reasonable person to readily inf er that he harbored the intention to create an imminent threat to public safety, peace, or order, or that such disorder was imminent. As anyone with experience riding the subway in New York City knows, an occasional loud, angry, or aggressive outburst is not unusual. It is highly unlikely a brief outburst directed at a small congregation of police officers would be sufficient to disturb the usual peace and "wonted calm" of the New York City commuters who were already present on the platform. See People v. Chesnick, 302 N.Y.58, 61 (1950). None of the 20 or 30 people present said anything to the police about Mr. Gonzalez's behavior. Nadel testified that the extent of public reaction as Mr. Gonzalez proceeded past him and the other officers and up the stairs was that some people "were not facing our direction at first, then they began to turn their heads and looks on their faces of surprise, curiosity of what was going on," and some people moved aside as he walked up the stairs (A.13-15). Here there was even less of an impact on the general public than in Baker, where about 10 people had congregated on the sidewalk. Nadel conceded that although Mr. Gonzalez continued making statements about the officers' conduct at a few passing 42 commuters as he climbed the stairs, he was not trying to engage other subway riders, did not touch anybody, did not stop to talk to anybody and did not make any dangerous gestures towards the officers (A.27-28) No one present stopped, congregated, responded, expressed alarm, or made any complaint to the officers (A.27-28). There was no testimony indicating that Mr. Gonzalez was trying to incite other passengers to gang up on the officers, or any indication anyone in the vicinity seemed inclined to get involved. close to the tracks. None of this activity took place Nadel was in a position of safety, accompanied by two other uniformed officers, in no risk of being outnumbered by a disorderly mob as a result of Mr. Gonzalez's conduct. The incident was over within a minute, since Mr. Gonzalez only had to walk five to 10 feet to get from the train door to where the officers were standing, and he proceeded past them and up the stairs without stopping, walking at a "regular pace" (A.12, 27- 28) . Nadel could not even recall if Mr. Gonzalez had turned back to look at them once he had passed (A.29). could have ignored Mr. Gonzalez. Unlike Weaver, where the defendant's Nadel easily behavior was escalating and the defendant "showed no signs of backing down" despite numerous warnings by the police, this interaction began and ended before Nadel decided to interfere. At no time did Nadel give Mr. Gonzalez any lawful orders that he refused to 43 obey. By the time Nadel and two other officers approached Mr. Gonzalez on the platform where he was waiting for the next train, Mr. Gonzalez was no longer shouting or waving his arms, and was not trying to engage the officers or other passengers. The only verbal communication from Nadel was his command to move to the center of the platform. Mr. Gonzalez immediately complied with Nadel's first and only request (A.15-16). Safety concerns cannot validate an officer's actions where such concern is purely the result of prior illegal police conduct. Terry, 392 U.S. at 27; People v. Samuels, 50 N.Y.2d 1035, 1039 (1980) (Fuchsberg, J. dissenting). Nadel testified that he approached Mr. Gonzalez and ordered him to the middle of the platform because he did not want to issue the summons on the edge of the subway platform. Since Nadel did not have probable cause to issue a summons, his desire to do so away from the edge of the platform does not change the illegal nature of the intrusion. Nadel did not notice anything suspicious or dangerous about Mr. Gonzalez as he watched him walk up the stairs, and he only followed him to issue him a summons (A.8, 26, 28). According to Nadel's own testimony, the public's only reaction to Mr. Gonzalez was "surprise, curiosity as to what was going on," and moving aside to let him pass as he walked up the stairs (A.13- 15). As Baker and the progeny of cases preceding it show, the surprise and curiosity of bystanders who happen to overhear an 44 individual dispute, even if the undesirable conduct causes a mild inconvenience for pedestrians, does not satisfy the public harm element of C.P.L. § 240.20. As such, the hearing court's holding that Nadel had probable cause to issue Mr. Gonzalez a summons for disorderly conduct was entirely baseless. B. The hearing court's alternative justification that this was at most a level two common law inquiry was incorrect because Nadel's stop of Mr. Gonzalez exceeded, as a matter if law, the scope of the minimal intrusion that would be permitted for an officer to confirm or refute a founded suspicion. The common-law right to inquire "is activated by a founded suspicion that criminal activity is afoot." DeBour, 40 N.Y.2d at 223. "The common-law authority to make investigative inquiries ... does not include the right to unlawfully seize." Cantor, 36 N. Y. 2d at 114 (emphasis added). An indi victual is seized when he is accosted by an officer and prevented from walking away. Terry v. Ohio, 392 U.S. 1 (1968). In the course of a street encounter between the police and a private citizen, "[t]he test for determining whether a seizure occurs is whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom." People v. Bora, 83 N.Y.2d 531 (1994); People v Hicks, 68 N. Y.2d 234, 240 (1986); Cantor, 36 N.Y.2d at 111-12. 45 In this case, even if Nadel had a level two predicate to conduct a limited inquiry, he failed to simply exercise this right, instead initiating a forcible stop on first approach for the sole purpose of issuing a summons and running a warrant check. The first thing Nadel did when he approached Mr. Gonzalez was to use the authority of his badge to prevent him from leaving. Nadel conceded that he prevented Mr. Gonzalez from getting on a,train (A.30). Nadel testified that Mr. Gonzalez was not in fact free to walk away at that time, "because I was going to have one of my officers write him a summons for disorderly conduct" (A. 16) Nadel's only other communication was an order to move to the center of the platform. He did not intend to, nor did he in fact make any inquiry of Mr. Gonzalez. A reasonable person in Mr. Gonzalez's position would feel that he had been seized. The stop was not "incidental" to the purpose of a level two temporary investigative stop, as Nadel had no suspicion he was trying to verify or dispel. Thus, under no view of the hearing evidence can Nadel's actions be characterized as a level-two stop. Instead, as a matter of law, Mr. Gonzalez was "physically or constructively detained by virtue of a significant interruption of his liberty of movement by police action." People v. Cantor 36 N.Y.2d at 111. He had been "seized." Id. 46 c. Contrary to the hearing court's decision, given the level of intrusion, the stop cannot alternatively be deemed a level one approach for information. The hearing court erroneously stated that the stop "was likely construed as a simple request for information that would be appropriate under a level one stop," because Nadel's intrusion far exceeded, as a matter of law, what would be permitted incidental to a request for information (A.71). Under no view of the record can Nadel's actions be characterized as a level one stop. A request for information is a "general, nonthreatening encounter" in which an officer can approach a person and ask briefly about his or her identity, destination, or reason for being in the area. Hollman, 79 N.Y.2d at 191. "Once the ... officer's inquiry focuses on the possible criminality of the person approached, this is not a simple request for information." Id. at 191-92. Nadel' s own testimony made clear that this was not a "general, nonthreatening encounter." Id. at 191. He had zeroed in on Mr. Gonzalez as a suspected lawbreaker from the beginning, and he was going to detain him to issue a summons without any further investigation. If merely requesting information, Nadel had no authority to restrict Mr. Gonzalez's liberty of movement and was limited to simple, non-intimidating questions pertaining to his identity and activities. Nadel by his own testimony did 47 not intend to ask any questions, nor did he in fact request any information (A.15-16). Not only did Nadel fail to request any information, he accompanied the verbal command to move to the center of the platform with intimidating behavior, positioning himself "directly behind" Mr. Gonzalez's back," mere "inches away," prevented him from leaving, and even prevented him from boarding a train (A.15-16, 30-31). It is irrelevant whether Nadel used physical force or secured Mr. Gonzalez's compliance in a calm and polite tone. An innocent person in Mr. Gonzalez's situation would believe from the content of the officer's directives (preventing him from getting on a train, and ordering him to move to the center of the platform) combined with the intimidating physical conduct (positioning himself inches behind his back) , that he was suspected of some kind of wrongdoing and that he was not free to walk away. Nadel conceded that Mr. Gonzalez was not in fact free to walk away at that point, as he was being detained to be issued a summons (A.30-31). * * * Nadel was only in the position to "peer into" Mr. Gonzalez's rear pants pocket after he exceeded the scope of his lawful authority under DeBour. Despite all three justifications offered by the hearing court and accepted by the Appellate Division, the seizure of the knife was the product of illegal police conduct. Since the knife was the only evidence 48 supporting the criminal possession of a weapon charge, the indictment should have been dismissed in its entirety. U.S. Const., Amends. IV, XIV,; N.Y. Const., Art. I, §12. CONCLUSION FOR THE REASONS STATED IN POINT I, THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED; FOR THOSE STATED IN POINT II, THE JUDGMENT SHOULD BE REVERSED AND THE INDICTMENT DISMISSED. June 13, 2014 ~~ubmitted, ROBERT S. DEAN Attorney for Defendant-Appellant 49 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Wordperfect, using a 12-point Courier (New) font, and totaled 12,381 words. lA