The People, Respondent,v.Richard Gonzalez, Appellant.BriefN.Y.April 28, 2015APL-2014-00091 To be argued by MALANCHA CHANDA (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - RICHARD GONZALEZ, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov PATRICK J. HYNES MALANCHA CHANDA ASSISTANT DISTRICT ATTORNEYS Of Counsel SEPTEMBER 25, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT ......................................................................................... 1 THE EVIDENCE AT THE SUPPRESSION HEARING ............................................ 4 The People’s Case ....................................................................................................... 4 The Defense Case ....................................................................................................... 8 The Hearing Court’s Decision ................................................................................ 11 THE EVIDENCE AT TRIAL .......................................................................................... 13 The People’s Case ..................................................................................................... 13 The Defense Case ..................................................................................................... 17 POINT I THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT THE PEOPLE WERE REQUIRED TO ESTABLISH DEFENDANT’S KNOWLEDGE THAT HE POSSESSED A KNIFE ....................................................................... 21 A. Statutory Construction and Well-Established Precedent Support the Conclusion that the People Were Not Required to Prove that Defendant Knew the Knife He Possessed Bore the Characteristics of an Illegal Gravity Knife. ................................................................................................ 22 B. The Imposition of Strict Liability under Penal Law § 265.01(1) Does Not Offend the Principles of Due Process. ............................................... 39 POINT II DEFENDANT’S SUPPRESSION CLAIM IS UNREVIEWABLE. IN ANY EVENT, THE RECOVERY OF DEFENDANT’S GRAVITY KNIFE WAS LAWFUL ........................................................................................... 55 A. Defendant’s Suppression Claim Challenging a Probable Cause Determination Made by the Lower Courts Presents an Unreviewable Mixed Question of Law and Fact. ............................................................... 56 B. Sergeant Nadel’s Removal of the Gravity Knife from Defendant’s Pocket was Completely Justified by His Probable Cause to Issue Defendant a Summons for Disorderly Conduct. ...................................... 62 C. Even in the Absence of Probable Cause to Issue a Summons for Disorderly Conduct, Sergeant Nadel’s Request for Defendant to Step to the Center of the Subway Platform Constituted Nothing More than a Level-One Request for Information ........................................................... 75 CONCLUSION ................................................................................................................... 82 -ii- TABLE OF AUTHORITIES FEDERAL CASES Draper v. United States, 358 U.S. 307 (1959) ................................................................... 64 Ehrlich v. Town of Glastonbury, 348 F.3d 48 (2d Cir. 2003) ........................................ 51 Lambert v. California, 355 U.S. 225 (1957) ....................................................................... 45 Morissette v. United States, 342 U.S. 246 (1952) ........................................................ 40-42 Pennsylvania v. Mimms, 434 U.S. 106 (1977) ................................................................... 62 Staples v. United States, 511 U.S. 600 (1994) ....................................................... 40, 43-46 Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................. 62, 74 United States v. Balint, 258 U.S. 250 (1922) ................................................... 40-41, 43, 45 United States v. Freed, 401 U.S. 601 (1971) ...................................................................... 40 United States v. Irizarry, 509 F. Supp. 2d 198 (E.D.N.Y. 2007) ...... 31-33, 41, 47, 50-51 United States v. Ventresca, 380 U.S. 102 (1965) .............................................................. 63 STATE CASES Giblin v. Nassau County Med. Center, 61 N.Y.2d 67 (1984) ......................................... 29 Goldstein v. Metro-North Commuter Railroad Co., 207 A.D.2d 723 (1st Dep’t 1994) .............................................................................................................. 69 Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577 (1998) ..................... 22 People v. Alejandro, 70 N.Y.2d 133 (1987) ...................................................................... 71 People v. Ansane, 96 A.D.2d 96 (4th Dept. 1983) ........................................................... 28 People v. Baker, 20 N.Y.3d 354 (2013) ............................................... 59-61, 67, 70, 72-73 People v. Bakolas, 59 N.Y.2d 51 (1983) ............................................................................ 66 People v. Batista, 88 N.Y.2d 650 (1996) ............................................................................ 65 -iii- People v. Berrier, 223 A.D.2d 456 (1st Dep’t 1996) ........................................................ 26 People v. Bora, 83 N.Y.2d 531 (1994) ......................................................................... 58, 63 People v. Bracey, 41 N.Y.2d 296 (1977) ............................................................................ 68 People v. Brannon, 16 N.Y.3d 596 (2011) ........................................................................ 25 People v. Brown, 100 A.D.3d 1035 (3d Dep’t 2012) ....................................................... 49 People v. Brown, 116 A.D.2d 727 (2d Dep’t 1986) ................................................... 70, 74 People v. Brunner, 248 A.D.2d 241 (1st Dep’t 1998) ...................................................... 70 People v. Burks, 2003 WL 22462055 Slip. Op. 51304(U), at *1 (App. Term., 1st Dep’t 2003) ................................................................................................... 78 People v. Carrasquillo, 54 N.Y.2d 248 (1981) ................................................................... 64 People v. Catala, 44 A.D.3d 388 (1st Dep’t 2007) ............................................................ 48 People v. Cavines, 70 N.Y.2d 882 (1987) .......................................................................... 48 People v. Cherry, 30 A.D.3d 185 (1st Dep’t 2006) .......................................................... 79 People v. Chestnut, 51 N.Y.2d 14 (1980) ....................................................... 58, 65, 75, 79 People v. Cohen, 57 A.D.2d 790 (1st Dept. 1977) ............................................... 25, 37-38 People v. Daly, 33 Misc. 3d 963 (Crim. Ct. N.Y. Co. 2011) ..................................... 36, 48 People v. Davis, 112 Misc. 2d 138 (Crim. Ct. Bronx Co. 1981) ....... 25-26, 28, 40, 43-44 People v. De Bour, 40 N.Y.2d 210 (1976) ................................................ 59, 62-64, 75, 77 People v. Diaz, 21 A.D.3d 58 (1st Dep’t 2005) ................................................................ 48 People v. Dolson, 142 Misc.2d 779 (Onondaga County 1989) ................................ 34, 51 People v. Finlayson, 76 A.D.2d 670, lv. denied, 51 N.Y.2d 1011 (1980) .................................................................... 64-65, 74 People v. Flynn, 15 A.D.3d 177 (1st Dep’t 2005) ............................................................ 78 People v. Ford, 66 N.Y.2d 428 (1985) ............................................................................... 38 -iv- People v. Francois, 14 N.Y.3d 732 (2010) ......................................................................... 59 People v. Getch, 50 N.Y.2d 456 (1980) ............................................................................. 68 People v. Gonzalez, 112 A.D.3d 440 (1st Dep’t 2013)...................................... 3-4, 58, 76 People v. Gordon, 23 N.Y.3d 643 (2014) ......................................................................... 42 People v. Graham, 55 N.Y.2d 144 (1982) ......................................................................... 29 People v. Gray, 86 N.Y.2d 10 (1995) ................................................................................. 77 People v. Greenidge, 91 N.Y.2d 967 (1998) ..................................................................... 59 People v. Grunwald, 29 A.D.3d 33 (1st Dep’t 2006) ....................................................... 79 People v. Harrison, 57 N.Y.2d 470 (1982) ................................................................... 58-61 People v. Herbin, 86 A.D.3d 446 (1st Dep’t 2011) .......................................................... 26 People v. Hicks, 68 N.Y.2d 234 (1986) ............................................................................. 79 People v. Hollman, 79 N.Y.2d 181 (1992) ................................................................... 62-63 People v. Howard, 22 N.Y.3d 388 (2013) ......................................................................... 60 People v. Jones, 9 N.Y.3d 259 (2007) ........................................................................... 70-71 People v. King, 102 A.D.2d 710 (1st Dep’t 1984) ........................................................... 75 People v. Lawrence, 256 A.D.2d 358 (2d Dep’t 1998) .................................................... 49 People v. Lepard, 83 A.D.3d 1214 (3d Dep’t 2011)......................................................... 69 People v. Maldonado, 86 N.Y.2d 631 (1995) .................................................................... 66 People v. Marrero, 69 N.Y.2d 382 (1987) ......................................................................... 26 People v. Massillon, 289 A.D.2d 103 (1st Dep’t 2001) .................................................... 79 People v. McDermott, 279 A.D.2d 361 (1st Dep’t 2001) ............................................... 69 People v. McIntosh, 96 N.Y.2d 521 (2001) ...................................................................... 59 People v. McRay, 51 N.Y.2d 594 (1980) ..................................................................... 59, 64 -v- People v. Mercado, 68 N.Y.2d 874 (1986) ........................................................................ 63 People v. Merriweather, 139 Misc. 2d 1039 (Dist. Ct. Nassau Co. 1988) ..................... 25 People v. Messado, 49 A.D.2d 560 (1st Dept. 1975) ....................................................... 26 People v. Miner, 42 N.Y.2d 937 (1977) ....................................................................... 63, 71 People v. Miranda, 19 N.Y.3d 912 (2012) ......................................................................... 75 People v. Miranda, 76 A.D.3d 466 (1st Dep’t 2010), aff’d, 19 N.Y.2d 912 (2012) ........................................................................................... 26 People v. Mitchell, 223 A.D.2d 729 (2d Dep’t 1996) ....................................................... 78 People v. Montero, 284 A.D.2d 159 (1st Dep’t 2001) ..................................................... 78 People v. Mott, 137 Misc. 2d 757 (Jefferson County Dec. 16, 1987) ....................... 34-35 People v. Munafo, 50 N.Y.2d 326 (1980) .......................................................................... 68 People v. Munoz, 9 N.Y.2d 51 (1961) ............................................................................... 50 People v. Oden, 36 N.Y.2d 382 (1975) .................................................................. 60-61, 64 People v. Pegues, N.Y.L.J., August 24, 1998 .................................................................... 71 People v. Persce, 204 N.Y. 397 (1912) .................................................................. 35, 37, 47 People v. Polk, 166 A.D.2d 177 (1st Dept. 1990) ............................................................ 48 People v. Pritchard, 27 N.Y.2d 246 (1970) ....................................................................... 70 People v. Prochilo, 41 N.Y.2d 759 (1977) ......................................................................... 64 People v. Ramos, 193 Misc.2d 564 (Crim. Ct. Bronx Co. 2002) .................................... 48 People v. Reyes, 83 N.Y.2d 945 (1994), cert. denied, 513 U.S. 991 (1994) .................................................................................. 78 People v. Salaman, 71 N.Y.2d 869 (1988) ......................................................................... 65 People v. Santi, 3 N.Y.3d at 234, 243 (2004) ............................................................... 22-23 People v. Saunders, 85 N.Y.2d 339 (1995) ................................................ 25, 38-39, 41, 49 -vi- People v. Shapiro, 96 A.D.2d 626 (3d Dep’t 1983) .......................................................... 69 People v. Shulman, 6 N.Y.3d 1 (2005) ......................................................................... 64, 71 People v. Simon, 148 Misc. 2d 845 (Crim. Ct. Bronx Co. 1990) .................................... 27 People v. Small, 157 Misc. 2d 673 (Sup. Ct. N.Y. Co. 1983) .......................................... 47 People v. Smith, 309 A.D.2d 608 (1st Dep’t 2003) .......................................................... 48 People v. Steinberg, 79 N.Y.2d 673 (1992) ....................................................................... 68 People v. Stevenson, 55 A.D.3d 486 (1st Dep’t 2008) .................................................... 79 People v. Terry, 34 Misc. 3d 144(A) (App. Term, 1st Dep’t 2012) ................................ 68 People v. Thompson, 245 A.D.2d 321 (2d Dep’t 1997) ................................................. 49 People v. Tichenor, 89 N.Y.2d 769 (1997) ........................................................................ 66 People v. Todaro, 26 N.Y.2d 325 (1970) ..................................................................... 69, 73 People v. Velasquez, 139 Misc. 2d 822 (Sup. Ct. N.Y. Co. 1988) ............................ 26, 28 People v. Visarities, 220 A.D. 657 (1st Dep’t 1927) ................................................... 37, 47 People v. Voltaire, 18 Misc. 3d 408 (Crim. Ct. New York Co. 2007) ............................ 45 People v. Walos, 229 A.D.2d 953 (4th Dep’t 1996) ......................................................... 49 People v. Weaver, 16 N.Y.3d 123 (2011) .............................................................. 67-68, 72 People v. Welch, 289 A.D.2d 936 (4th Dep’t 2001) ........................................................ 70 People v. Wheeler, 2 N.Y.3d 370 (2004) ................................................... 59, 62, 64-65, 74 People v. Williams, 17 N.Y.3d 834 (2011)......................................................................... 59 People v. Wood, 58 A.D.3d 242 (1st Dep’t 2008) ........................................................... 41 People v. Yukl, 25 N.Y.2d 585 (1969) ............................................................................... 79 People v. Zherka, 25 Misc. 3d 1210(A) Slip. Op. 52018(U), at *5 (Crim. Ct. N.Y. Co. 2009) .................................................................................................... 66, 70 -vii- STATE CONSTITUTION, STATUTES, AND REGULATIONS N.Y. Const. Art. VI § 3 ........................................................................................................ 58 CPL § 100.15(3) ................................................................................................................... 71 CPL § 100.40(1)(c) ................................................................................................................ 71 CPL § 140.10(1) .............................................................................................................. 63, 66 CPL § 140.50(1) .................................................................................................................... 63 CPL § 140.50(3) .................................................................................................................... 63 CPL § 150.20(1) .................................................................................................................... 66 CPL § 170.40 ......................................................................................................................... 43 CPL § 210.40 ......................................................................................................................... 43 CPL Article 370 .................................................................................................................... 44 CPL § 470.05(2) .................................................................................................................... 77 CPL § 470.35 ................................................................................................................... 58, 77 McKinney’s Cons. Laws ................................................................................................ 29, 35 Model Penal Code sections 2.02(1), 2.02(3), and 2.05 ............................................... 30, 34 Penal Code § 2.02(1) ............................................................................................................ 30 Penal Code § 2.05 ............................................................................................................ 30-31 Penal Law § 15.00 ............................................................................................... 23, 25, 37-39 Penal Law § 15.10 ..................................................................................................... 23-24, 30 Penal Law § 15.15 ..................................................................................................... 24-25, 31 Penal Law § 70.06 ................................................................................................................. 43 Penal Law § 70.15(1) ...................................................................................................... 43, 46 Penal Law § 240.20 ...................................................................................................... 4, 66-67 -viii- Penal Law § 256.01(1) ......................................................................................................... 37 Penal Law § 265.00(5) ........................................................................................ 23, 47-48, 51 Penal Law § 265.01(1) ..................... 22-29, 31, 34-35, 37, 39, 41, 43, 45-46, 49-51, 55, 75 Penal Law § 265.01-a....................................................................................................... 27-28 Penal Law § 265.01(2) .......................................................................................................... 27 Penal Law § 265.02 ......................................................................................................... 28, 38 Penal Law § 265.02(1) ..................................................................................... 1, 3, 23, 43, 51 Penal Law § 265.02(3) .......................................................................................................... 28 21 N.Y. Code Rules & Regs. 1050.8 .................................................................................. 75 OTHER AUTHORITIES Denzer and McQuillan, Practice Commentary to Penal Law § 15.00 et. seq., Book 39 ................................................................................................................... 29 Emma Harrison, Group Seeks Ban on Gravity Knife, New York Times (Dec. 19, 1957) .......................................................................................................... 33, 47 John Eligon, 14 Stores Accused of Selling Illegal Knives, New York Times (June 17, 2010) .................................................................................................... 54 Laura Italiano, The ‘Honed’ Depot, New York Post (June 18, 2010) ........................... 54 http://open.nysenate.gov/legislation/bill/S3686-2013 .................................................. 36 http://open.nysenate.gov/legislation/bill/S5650-2013 .................................................. 36 http://www.ehow.com/how_7190380_loosen-pivot-screw-knife.html ................ 46, 48 http://www.homedepot.com/p/Husky-4-5-in-Folding-Retractable- Lock-Back-Utility-Knife-97212/204757629 ............................................................... 54 http://www.homedepot.com/p/Husky-Dual-Knife-Medium-008-120- HKY/202057248; http://www.homedepot.com/p/Husky-2-4-in- Twin-Blade-Folding-Utility-Knife-97214/204757636 ............................................... 53 http://www.homedepot.com/s/husky%20knife?NCNI-5 ............................................ 53 -ix- http://www.homedepot.com/s/husky?NCNI-5 ............................................................. 52 Switchblade Knives: Hearing Before a Subcommittee of the Committee on Interstate and Foreign Commerce, House of Rep., 85th Cong., 2d Sess. 13, 29 (1958) ........................................................................................................... 34 -x- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RICHARD GONZALEZ, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Pigott, Associate Judge of the Court of Appeals, defendant Richard Gonzalez appeals from a December 5, 2013, order of the Appellate Division, First Department. By that order, the Appellate Division affirmed a May 24, 2012 judgment of the Supreme Court, New York County, convicting defendant, following a jury trial, of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]), and sentencing him, as a second felony offender, to an indeterminate prison term of from three and one-half to seven years. At approximately 10:40 a.m. on April 14, 2011, Sergeant Ian Nadel of the New York City Police Department and two of his patrol officers were monitoring crime along the 4, 5, and 6 subway lines at the East 125th Street and Lexington Avenue station in Manhattan. The three officers were standing beside a staircase on the lowest level of the subway station when defendant stepped out of a downtown 6 train approximately five to ten feet away. Upon his exit from the train, defendant immediately began shouting obscenities at the officers and gesticulating wildly with his arms, accusing the officers of blocking the staircase. People on the platform turned around to see what was happening, and had looks of surprise and curiosity on their faces. Defendant continued to curse at the officers as he made his way up the stairs. He also shouted at other people who were walking up the stairs and directed his complaints about the police to them. As defendant passed these people, they moved out of his way. And people who were walking down the stairs made sure to avoid his path. Sergeant Nadel followed defendant up the stairs with the intention of issuing him a summons for disorderly conduct. By the time Nadel arrived at the second level of the subway station, defendant was standing along the edge of the uptown platform. To ensure his safety, the sergeant told defendant to step to the middle of the platform. Defendant did so. At that point, Nadel, who was directly behind defendant, noticed what he believed to be a switchblade knife inside defendant’s rear right jeans pocket. He removed the knife and opened it to discover that it was actually a Husky brand “two in one” model knife that operated as a gravity knife. Nadel then arrested defendant. -2- By New York County Indictment Number 2617/2011, filed on May 19, 2011, a grand jury charged defendant with Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]). Defendant moved to suppress the gravity knife, and after conducting a suppression hearing on March 1, 2012, the Honorable Thomas Farber, in an oral decision, denied defendant’s motion. On April 18, 2012, defendant proceeded to a trial before the Honorable Patricia Nunez and a jury, and, later that day, he was convicted as charged. On May 24, 2012, defendant was sentenced as noted above. On appeal to the Appellate Division, First Department, defendant claimed that the hearing court had erroneously denied his motion to suppress the gravity knife. Defendant also contended that he had been deprived of due process as a result of the trial court’s jury charge that, to convict him, the People had to establish his knowing possession of a knife, but not his knowledge that the knife was a gravity knife. Finally, defendant claimed that his sentence was excessive. In a decision and order dated December 5, 2013, the Appellate Division unanimously affirmed defendant’s conviction. See People v. Gonzalez, 112 A.D.3d 440 (1st Dep’t 2013) (A. 2-3). The court upheld the denial of defendant’s suppression motion, concluding that Sergeant Nadel had probable cause to arrest defendant for disorderly conduct because defendant had “recklessly created a risk of ‘public inconvenience, annoyance or alarm’” when, in a crowded subway station, he had cursed at police officers loudly and angrily, waved his arms violently, screamed at -3- fellow passengers about the officer’s actions, and forced those passengers to get out of his way. Gonzalez, 112 A.D.3d at 441 (quoting Penal Law § 240.20). The Appellate Division also upheld the trial court’s jury charge, concluding that the court had properly instructed the jury that the People needed to prove “defendant’s knowledge that he possessed a knife in general,” not “that the knife met the statutory definition of a gravity knife.” Id. Finally, the court declined to reduce defendant’s sentence. Id. By order dated April 21, 2014, Judge Pigott granted defendant’s application for leave to appeal to this Court (A. 1). Before this Court, defendant renews his challenges to the suppression decision and the jury instruction. THE EVIDENCE AT THE SUPPRESSION HEARING The People’s Case On the weekday of April 14, 2011, Sergeant IAN NADEL, a six-year veteran of the New York City Police Department, was working as a uniformed patrol supervisor in the Anti-Terrorism Unit, which conducts both terrorism-related activities and general law enforcement. Nadel was assigned to monitor “high crime patterns” along the 4, 5, and 6 subway lines, and he was at the East 125th Street and Lexington Avenue subway station in Manhattan overseeing two of his patrol officers, Officers Tucci and Shatkin, to ensure that they were in proper uniform and performing their duties appropriately. The three officers were standing at the base of -4- the stairway on an “island platform” on the lowest of three levels of the subway station. Trains were running on both sides of the platform heading south (Nadel: A. 9-10, A. 13, A. 22-24). At approximately 10:40 a.m., while he was overseeing one of his officers, Sergeant Nadel saw defendant exit a southbound train.1 Defendant immediately “began shouting obscenities” at Nadel and his patrol officers, who were five feet away from defendant and standing at the side of the staircase. Specifically, facing the officers, defendant shouted, “just because you are the fucking police does not mean you could block the staircase, who the fuck do you think you are.” In addition to cursing, defendant was “flailing his arms violently” and “moving his arms side to side, back and forth” with his “hands above his head” (Nadel: A. 10-12, A. 24-27).2 Although defendant walked at a normal pace, the tone of his voice was “angry,” and the volume was “[l]oud enough” to draw the attention of people on the other side of the platform (Nadel: A. 12-13). There were approximately 20 to 30 people in the “immediate vicinity” of defendant and the officers, and those people, who had not been facing the direction of the officers, “began to turn their heads” and 1 Nadel identified defendant at the hearing as the man who had exited the train (Nadel: A. 14). 2 Nadel acknowledged that a person is allowed to curse at officers if he wants to do so, and that cursing is not a sufficient basis for that person’s arrest (Nadel: A. 26). -5- had looks of “surprise” and “curiosity” on their faces. As defendant walked past them, “they all turned and moved out of his way” (Nadel: A. 13-14). Defendant then walked past Sergeant Nadel and proceeded up the stairs. He “continued shouting and screaming,” but this time at the other people on the stairs, shouting, “I don’t believe this, who do they think they are, what do they think they’re doing.”3 The people who had been walking down the stairs moved out of defendant’s way “to get out of [his] path” (Nadel: A. 11, A. 14-15, A. 27). Sergeant Nadel followed defendant up the stairs, trailed by his two patrol officers. Once he got upstairs to the second level, where trains were headed north, he noticed defendant standing on the yellow line along the edge of the platform; defendant was partially facing the tracks and partially looking in Nadel’s direction. Because defendant had just exited a southbound train, Nadel was not sure what he was doing on the northbound platform (Nadel: A. 14-15, A. 29-31). The sergeant approached defendant, intending to instruct one of his officers to issue defendant a summons for disorderly conduct. For “safety purposes,” specifically, because he did not want to issue a summons on the edge of the platform, Nadel told defendant to “step to the middle of the platform.” Defendant complied (Nadel: A. 15-16).4 3 Defendant did not touch any of these people and did not stop anyone. He also did not make a “dangerous gesture” toward the police officers (Nadel: A. 27-28). 4 Nadel was not going to permit defendant to leave and was restricting his movements (Nadel: A. 31). -6- At that point, Sergeant Nadel was “directly behind [defendant’s] back.” Without touching defendant, Nadel observed a wallet and a “bulge” in the right rear pocket of defendant’s jeans, obstructing defendant’s wallet from touching his body (Nadel: A. 16-17).5 Nadel found the “big space” between the wallet and defendant’s body to be “unusual” because a wallet generally “sit[s] against [a] person” (Nadel: A. 31-32). From less than one foot away, the sergeant peered into defendant’s pocket without touching him.6 The back pocket was open “the length of the width of a wallet”; inside, in addition to the wallet, Nadel observed a knife with a “black handle,” on which there was a “white metal clip and red button” on the top center (Nadel: A. 18-19, A. 34-36).7 Sergeant Nadel had received training in identifying various types of knives and had made, or assisted in, 75 to 100 arrests of persons possessing knives; three quarters of those arrests were for the possession of switchblades or gravity knives (Nadel: A. 7-8). Nadel believed that the knife he saw in defendant’s pocket was a switchblade; based on his training, he was aware that release by a button is what causes a switchblade knife to “spring in place and lock in place (Nadel: A. 19, A. 36). Sergeant Nadel reached into defendant’s pocket and removed the knife for safety reasons, and also because a switchblade is illegal in New York and “all knives 5 Defendant was wearing blue jeans and a t-shirt, the bottom of which “rested just above the edge of the top of his pants” (Nadel: A. 14). 6 The lighting at the time was the “[w]ell lit indoor lighting” of the subway station (Nadel: A. 18). 7 The metal clip is actually silver in color (People’s Exhibit 1 [gravity knife]). -7- are prohibited” in the transit system. The knife had a black plastic casing with the “Husky” brand name on the front. It included two separate blades, one slide-out razor blade and one fold-out standard knife blade; the latter bore a silver thumb stud and was affixed to the casing by a pivot screw with a spanner head on each side. On the back, the knife had a silver metal belt clip and a red button above that clip (People’s Exhibit 1 [gravity knife]). Nadel attempted to open the knife to confirm that it was indeed a knife and to determine the type of knife it was (Nadel: A. 20). He determined the knife to be a gravity knife by flicking his wrist and observing that the knife blade opened and locked into place (Nadel: A. 20-21, A. 36). Nadel then arrested defendant and handed the gravity knife to Officer Shatkin for vouchering and processing (Nadel: A. 21-22; People’s Exhibit 1). The Defense Case At around 10:40 on the weekday morning of April 14, 2011, RICHARD GONZALEZ was heading to do carpentry work for a man in Englewood, New Jersey.8 He had been doing carpentry work for approximately seven years, in addition to plumbing, sheet rocking and roofing, and had worked for some time on the various buildings owned and maintained by his client (Gonzalez: A. 39-40). On April 14, 8 The parties stipulated to defendant’s criminal record, of which the court took notice in evaluating his credibility (A. 48). As discussed in greater detail during defendant’s trial testimony, infra, defendant has been previously convicted of approximately half a dozen felonies and numerous misdemeanors. -8- defendant was carrying a bag that contained door locks and doorknobs because his client needed locks in the door of a new house. He was wearing a long white T-shirt, jeans, and work boots, and had a cell phone clipped to his belt. In his pocket, defendant had a wallet and, between the wallet and his body, a “utility knife.” The knife was defendant’s “working knife,” used for cutting sheetrock. It did not have a silver clip on it, and the red button on the side could not be seen when inside his pocket. Defendant bought this “Husky” brand knife at Home Depot. His wallet “obstruct[ed] anyone viewing that knife (Gonzalez: A. 40-42, A. 57-58). To get to work, defendant first took the 6 train from East 138th Street and Third Avenue in the Bronx, which was near his apartment, to the East 125th Street and Lexington Avenue station, from where he had to “change and go upstairs to catch the 5 train” (Gonzalez: A. 38-39, A. 42, A. 48-49, A. 51).9 When defendant got off the train, he noticed three officers “blocking the bottom of the stairway” that would lead him to the platform for the 5 train. Sergeant Nadel was on the corner farthest from him, and all three were “playing with their cell phones.” There were numerous other people who had gotten off the train as well, and there were passengers on the platform waiting for other trains (Gonzalez: A. 42-44, A. 50-55). 9 To get to New Jersey, defendant would have to take the northbound 5 train to 149th Street, where he could transfer to the downtown 2 train to 96th Street. From 96th Street, he would be required to take the uptown 1 train to 181st Street, where he would leave the subway and “go by the George Washington Bridge and take the bus over to Englewood, New Jersey” (Gonzalez: A. 42, A. 45, A. 49, A. 55). -9- Although there was “space enough” for defendant to “walk by” the officers up the stairs, he did not want to “brush by them” in any way.10 Thus, he told Sergeant Nadel, “excuse me officer, you know that people have to use these stairways to go up you know.” Nadel moved to the side and defendant walked up the stairs (Gonzalez: A. 44, A. 52-55). Defendant was not intoxicated that morning, did not shout any obscenities, and spoke to no one (Gonzalez: A. 42, A. 44-45). When defendant got to the second level of the station to catch the northbound 5 train, he made sure to stand by the railing of another staircase, not on the edge of a platform, because he would “never do that.” Suddenly, all three officers he had just walked past came toward him, and the sergeant screamed at him to “turn around.” Defendant asked what he had done “wrong,” but he was told to remain quiet and turn around. When he complied, another officer grabbed defendant’s bag and directed him to “put [his] hands out,” which defendant did. Sergeant Nadel then went inside defendant’s pocket, took out his wallet and the knife, and said, “boom, oh, I got you” (Gonzalez: A. 45-46, A. 55-56).11 Although defendant insisted that he had “done nothing wrong,” he was handcuffed and taken upstairs to the token booth, where the officers put his head against the corner of that booth. When he asked why he was 10 The stairway was approximately four to five feet wide (Gonzalez: A. 52). 11 Although defendant knew he had the knife on his person, he “never knew that knife was illegal” (Gonzalez: A. 57-58). -10- being arrested, an officer told him to be quiet or else he would “slam [defendant’s] head against the wall” (Gonzalez: A. 46-47). By this time, a large number of people had entered the train station, and they had observed the officers yelling at defendant. The officers were determined to “get [defendant] out of [t]here,” because “too many people [were] looking.” They took defendant outside the subway station and placed him in a patrol car (Gonzalez: A. 47). The Hearing Court’s Decision On March 1, 2012, at the conclusion of the suppression hearing, Justice Farber, in an oral decision, denied defendant’s motion to suppress the gravity knife. At the outset, the court found Sergeant Nadel to be a credible witness in all respects, while discrediting defendant—whose criminal record, the court noted, “speaks for itself” (Decision: A. 69). The court therefore made findings of fact that fully comported with the sergeant’s hearing testimony (Decision: A. 69-70). Noting that it is not generally a crime to “talk back or even curse” at a police officer, the hearing court found that the conduct that was described by Nadel was “sufficient to cause alarm” to the passengers on the subway station. Defendant had shouted obscenities at the officers, had continued to talk about the officers as he walked up the stairs with other passengers, and had caused these other passengers to move out of his way. Based on these actions, the hearing court concluded, the officers had “the right to react and issue a summons” to defendant for disorderly -11- conduct. Indeed, the police officers had probable cause to arrest defendant for disorderly conduct, although they did not intend to do that (Decision: A. 69-71). The court concluded that Sergeant Nadel’s request for defendant to move to the center of the platform on the second level was, “at most,” an exercise of the common law right to inquire. “[M]ore likely,” the court found, it was only “[a] simple request for information that would be appropriate under a level one stop” (Decision: A. 71). The court emphasized, however, that the police officers certainly had probable cause to arrest and were “actually entitled to take [ ] defendant into custody if they wanted to” (Decision: A. 71). Once Sergeant Nadel saw a knife in defendant’s pocket, the court held, he was entitled, based upon his “extensive experience” and “his belief that it was a switchblade,” to reach inside defendant’s pocket and remove the knife. The court explained that the sergeant would have been entitled to remove it in any event, even if he had thought it was only a “regular knife,” because a transit regulation prohibits possession of any type of knife within the subway system. Additionally, the court concluded, Nadel was entitled to remove the knife for his “own safety because he was going to issue a summons.” The court determined that, having recovered a gravity -12- knife—which it appeared to the court to be—Sergeant Nadel was authorized to arrest defendant (Decision: A. 71).12 THE EVIDENCE AT TRIAL The People’s Case On the morning of April 14, 2011, Sergeant IAN NADEL and Officers LEONID SHATKIN and Tuccio, veteran officers of the New York City Police Department, were patrolling the East 125th Street and Lexington Avenue subway station and responding to any calls for assistance. As defendant exited a train that morning, at approximately 10:40 a.m., he started “screaming” at the police and began waving his hands and arms “above his head, and side to side, back and forth,” all 12 Immediately following the court’s decision, defendant shouted out, “That is bullshit” and “Take me the fuck out of here.” He screamed at Justice Farber, “You just decide with them, you an agent from the state too, the same fucking way you can see that knife in my pocket it was bullshit.” And, presumably referring to the assistant district attorney, defendant added, “she is a fucking lying bitch too. Fucking lying son of a bitch, now I am fucking mad” (A. 72). Defendant continued, “Fucking cops do whatever the fuck they do, they steal, they rob drug dealers, they do every fucking thing, but they honest, right, because they cops.” Again addressing Justice Farber, defendant yelled out, “Cock sucker, you mother fucker, suck my dick, Farber, son of a bitch . . . now [you] can say I am being fucking disorderly, now” (A. 72). Defendant had to be removed from the courtroom and continued screaming as he was led out (A.72). Justice Farber noted that defendant’s “outburst” was consistent with Sergeant Nadel’s view of what had happened in the subway station and that, although the judge had not taken that into account in making his decision, it was consistent with the way defendant, an “angry man,” had been “muttering and acting” throughout the proceeding (A. 73-74). -13- while “causing public alarm to people.”13 From approximately eight feet away from the officers, who were standing side by side, defendant shouted out in a “loud and [a]ngry” voice, “Fuck the police, you guys not fucking standing here doing anything,” and “Who the fuck do you think you are?” (Nadel: A. 128-129; Shatkin: A. 163-64). While defendant yelled, about 20 people—which was equal to the size of a crowd during rush hour—reacted by moving away from the area where defendant was screaming. After defendant went up the stairs, Nadel followed him, and Shatkin followed Nadel, with Officer Tuccio behind him. Nadel intended to issue defendant a summons for disorderly conduct because defendant had “caused annoyance and alarm” to the other people in the subway station. Specifically, defendant had caused them “to look in his direction” with both “surprise” and “confusion” on their faces, had “forced” them to move out of his way as he walked up the stairs because he was in their path, and had “forced [them] to divert from their normal activities in what they were doing” (Nadel: A. 125, A. 129-30, A. 159-60; Shatkin: A. 161-62, A. 165, A. 167, A. 172-74). Once upstairs, Nadel discovered that defendant was standing along the edge of the platform on the second level. “For safety reasons,” he asked defendant to move to the middle of the platform. After defendant moved to the center of the platform, 13 Both Nadel and Shatkin identified defendant at trial (Nadel: A. 130; Shatkin: A. 165-66). -14- Nadel peered into his pocket and observed a knife with a red button on its casing (Nadel: A. 134-35). He believed it to be a switchblade knife, a type of knife that, upon pressing a button, springs open and locks into place (Nadel: A. 131-34).14 He also noticed that the knife had “similar characteristics” to other switchblades he had encountered in the past (Nadel: A. 135). He removed the knife for his own safety, because he did not want defendant to have a knife on his person, and also because it is illegal to have a switchblade in New York and to have a knife in the subway (Nadel: A. 135). The knife had a black plastic casing with the “Husky” brand name on the front; besides that brand name, there were no other markings on the knife, including any initials. The knife included one razor blade that “extend[ed] from the casing” upon sliding a black button. It also included a second blade, a folding standard knife blade with a silver thumb stud; that blade was affixed to the casing by a pivot screw with a spanner head on each side. On its back, the knife had a silver metal belt clip and a red button above that clip (Nadel: A. 138-41, A. 158-59; People’s Exhibit 1 [gravity knife]). After removing the knife, Sergeant Nadel tested it. He “flicked [his] wrist,” and the blade “snapped” open and “locked into place” (Nadel: A. 136). Based on Nadel’s training and experience, this operation fit the characteristics of a gravity knife, which 14 During training, Nadel had been instructed as to the properties of different types of knives, and had learned the qualities that distinguished one type from another (Nadel: A. 125). -15- “uses either gravity or centrifugal force to open up and lock into place” (Nadel: A. 136). Meanwhile, Officer Shatkin arrived on the second level and saw that Nadel had defendant stopped near a garbage bin in the middle of the platform. Defendant’s hands were on the garbage bin, and Nadel was right behind him. Nadel arrested defendant, and when Shatkin approached, Nadel handed him a wide black knife that had a blade folded into it and a red button on the side (Nadel: A. 136. A. 138-39; Shatkin: A. 167, A. 174-75; People’s Exhibit 1 [gravity knife]). Shatkin “flicked” the knife with his wrist, and the blade “came out” and “locked in.” At that point, the officer folded the knife back in by using his thumb to move “the locking mechanism” that locks the blade “automatically,” which then enabled the blade to “fall back in” (Shatkin: A. 167-68, A. 179-80; see also Nadel: A. 141). He subsequently placed the knife in his jacket pocket. Based on his training and experience, Officer Shatkin concluded that the knife was a gravity knife. He later vouchered the knife at the precinct, along with two cell phones and a doorknob recovered from defendant (Shatkin: A. 168, A. 171, A. 177).15 At trial, both Sergeant Nadel and Officer Shatkin demonstrated to the jury how they had opened the gravity knife on the day they seized it from defendant (Nadel: A. 15 The officer made a mistake in numbering two vouchering bags: one that he had created after the arrest, and the other one he had created on July 29, 2011 after the suppression hearing. One of the bags had an additional zero, four instead of three, in the voucher number and read “1000011978” (Shatkin: A. 169-71, A. 183-84). -16- 140; Shatkin: A. 173). Nadel “[f]licked [his] wrist” and the knife opened (Nadel: A. 140). During Nadel’s testimony, defense counsel attempted to open the knife, but was instructed by the court not to do so for fear that counsel would injure himself (Nadel: A. 160). The Defense Case At around 10:40 a.m. on the weekday morning of April 14, 2011, RICHARD GONZALEZ was heading to do “sheetrock” and carpentry work, including replacing door knobs, for a client in New Jersey. In his back pocket, he carried his wallet and his “carpenter utility knife,” which contained a razor blade as well as a knife blade (Gonzalez: A. 190-92). The knife was a “Husky” brand “two in one utility knife” that he had bought at Home Depot in 2009;16 the knife had a red button that released the razor blade, allowing the blade to be changed. Defendant used the knife to make holes in sheetrock, and he did not even know what a gravity knife was at that time (Gonzalez: A. 189-93, A. 197, A. 201-03). After defendant got off a train at the 125th Street and Lexington Avenue subway station, he noticed three officers “blocking the stairway from [p]eople going up.” The officers were engaged “with their cell phones” and “all the other passengers had to go back around them and go up the other staircase.” Observing this, defendant remarked, “excuse me, sergeant, you know, people have to use the 16 The store was still selling this type of knife as of the time “this case started” (Gonzalez: A. 192-93). -17- stairways.” He “had no reason at all” to curse at Sergeant Nadel or his officers, and all he did was politely ask Nadel to step aside so that he could walk up the stairs (Gonzalez: A. 193-95, A. 200). Nadel stepped aside, and defendant proceeded up the stairs to the second level. Once there, he leaned against a “railing of the stairs” and waited for a train. Suddenly, the sergeant appeared and ordered him to “turn around.” Defendant complied and the sergeant started searching him and his bag. Thereafter, Nadel declared, “I got you for a gravity knife.” The other officers appeared, handcuffed defendant, and took him upstairs to the token booth, where they “mushed [his] head in the corner” of that booth. When he asked why he was being arrested, an officer told him to “shut the fuck up.” Because a large number of people had gathered by then, the officers took defendant outside the subway station, placed him in patrol car, and took him to the police station downtown (Gonzalez: A. 195-99). Upon viewing the knife introduced into evidence at trial, defendant stated that the knife was not the one he had carried on April 14, 2011 (Gonzalez: A. 197, A. 203). Although he admitted that his knife also had a red button and was a two-in-one utility knife, his knife had been engraved with “RG,” his initials; defendant engraved all his tools because he did not want them “mixed up” with the tools of others on his various work sites (Gonzalez: A. 197, A. 202). The knife that he had in his possession on the day of his arrest did not open in the same manner demonstrated by the officers at trial. He had never attempted to open the knife by flicking it open. He just -18- “opened it with two hands” in a way “a person would open a pen knife” (Gonzalez: A. 199). Defendant admitted that he had previously been convicted of several crimes (Gonzalez: A. 203). However, he denied that he had pled guilty to petit larceny on May 16, 2010 (Gonzalez: A. 203-04). Although defendant admitted to prior felony convictions, including a November 18, 2003 conviction of first-degree criminal contempt following his violation of an order of protection with respect to his ex-wife, defendant claimed that “didn’t violate the code.” Defendant denied having displayed a hand gun, having threatened to kill his ex-wife, and having forced her into his car when she came downstairs; the prosecutor’s suggestions otherwise were “all lies.” Defendant had pled guilty solely to have “grounds enough to divorce her afterwards” (Gonzalez: A. 204-05, A. 212-15). Defendant admitted that he had pled guilty to a felony on December 8, 1997. He also admitted to having pled guilty, on May 11th of 1993, to the felony of fourth- degree criminal possession of stolen property (relating to a stolen car), but denied having given a false name upon his arrest (Gonzalez: A. 205-06). He stated that the arresting officer had “[o]f course” made a mistake in recording his name, and remarked, “Officers never lie?” Defendant added that “[o]fficers in the Bronx, in the 40th precinct are all corrupt” (Gonzalez: A. 207). Defendant could not recall whether he had pled guilty on February 23, 1993 to numerous felonies relating to an incident involving a stolen car (Gonzalez: A. 207-08). -19- When asked whether he had pled guilty to the felony of third-degree criminal mischief arising from that incident, he responded, “Probably I did, it’s been a while.” With respect to the additional charges of fourth-degree criminal possession of stolen property, fourth-degree grand larceny, larceny, and false reporting of a stolen vehicle, defendant could not recall having pled guilty to those crimes (Gonzalez: A. 208-09). He also denied having given the arresting officer a false name; the officer must have made a “mistake.” Defendant also could not recall having pled guilty on February 23, 1993 to additional crimes and felonies with respect to a separate incident involving a stolen vehicle, including third-degree criminal mischief and criminal possession of stolen property. (Gonzalez: A. 209-12). 17 17 Defendant often interrupted the prosecutor and refused to answer questions directly, especially those that called for a “yes” or “no” answer (83-93). He accused the prosecutor of “confusing” him and the jurors, and asked, “How many times I’m saying I don’t understand what you’re saying ---” (Gonzalez: A. 212). The court admonished him not to interrupt the prosecutor (Gonzalez: A. 213). After defendant completed his cross-examination testimony, he asked, in the presence of the jury, whether he could address the court and the jury. The court denied his request and told him to return to his seat. Nonetheless, defendant said, “This don’t make no sense, ma’am.” Although the court admonished him not to speak further, defendant nonetheless stated, “[t]he cops are liars” (Gonzalez: A. 215). -20- POINT I THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT THE PEOPLE WERE REQUIRED TO ESTABLISH DEFENDANT’S KNOWLEDGE THAT HE POSSESSED A KNIFE (Answering Defendant’s Brief, Point I). In instructing the jury on the charge of third-degree weapon possession against defendant, Justice Nunez stated, in relevant part: Under our law a person is guilty of criminal possession of a weapon in the third degree when that person knowingly possesses a gravity knife. . . . A person knowingly possesses a gravity knife when that person is aware that he or she is in possession of such gravity knife. (Jury Charge: A. 242-43). Defendant voiced no objection to this charge (Jury Charge: A. 245). The jury subsequently submitted a note during deliberations asking whether defendant needed to knowingly possess “the knife” or a “gravity knife” (Proceedings: A. 248). Defense counsel argued that a “proper instruction to the jury would be along the lines that the defendant has to know that he possessed an instrument having its characteristics of a gravity knife” (Proceedings: A. 249). The court disagreed, noting, “That’s not what the statute says. It [is] strict liability.” In responding to the note, the court instructed the jury, “[T]he simple answer to that question, the defendant needs to knowingly possess the knife.” (Proceedings: A. 250). Before this Court, defendant contends that the trial court erred in refusing to charge that the People had to prove defendant’s knowledge that the knife he -21- possessed had the characteristics of a gravity knife. In support of this contention, defendant claims that the principles of statutory construction and due process required the court to read a knowledge element into the gravity knife portion of the per se weapon possession statute (Defendant’s Brief [“DB”]: 13-18). Specifically, although defendant concedes that Penal Law § 265.01(1) on its face requires no proof of a culpable mental state, he claims that Article 15 of the Penal Law, as well as “this State’s case law interpreting § 265.01 over the last 100 years,” require this Court to read a “knowingly” requirement into § 265.01(1) and to apply that requirement to the specific characteristics that make a knife a “gravity knife” (DB: 14-15). Moreover, according to defendant, dispensing with a mens rea requirement would, in violation of due process, make “criminals” of those, like him, who possessed a common utility knife and used it for innocent purposes (DB: 22). Defendant’s contentions are without merit. A. Statutory Construction and Well-Established Precedent Support the Conclusion that the People Were Not Required to Prove that Defendant Knew the Knife He Possessed Bore the Characteristics of an Illegal Gravity Knife. In construing a statute, a court’s “primary consideration” is “to ascertain and give effect to the intention of the Legislature.” People v. Santi, 3 N.Y.3d at 234, 243 (2004) (internal quotations and citations omitted). Because “the clearest indicator of legislative intent is the statutory text,” a court’s “starting point” in construing a statute “must always be the language itself.” Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583 (1998). The interpreting court should give effect to the -22- “plain meaning” of the statutory text, so long as it does not lead to an absurd or unintended result. Santi, 3 N.Y.3d at 242. As defendant concedes (DB: 14), there is no mens rea requirement set forth in Penal Law § 265.01(1), the statute under consideration here. A person is guilty of third-degree criminal possession of a weapon when he “possesses any . . . gravity knife” and has a prior conviction. Penal Law § 265.02(1) (incorporating by reference Penal Law § 265.01[1]). A gravity knife is a knife having “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.” Penal Law § 265.00(5). Section 265.01(1) does not, by its terms, require the possessor to know that the knife possessed is a gravity knife; in fact, the provision does not expressly mandate any mental state at all. That is not the end of the inquiry, however, for Article 15 of the Penal Law provides specific legislative directives as to statutory interpretation regarding mental culpability. In Penal Law § 15.10, addressing the “Requirements for Criminal Liability in General and for Offenses of Strict Liability and Mental Culpability,” the Legislature set forth the Penal Law’s minimum culpability requirement of a “voluntary act.” See Penal Law § 15.10. A “voluntary act” is defined to include “the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.” Penal Law § 15.00(2). -23- The Legislature expressly provided in section 15.10 that an offense requiring no more culpable mental state than a voluntary act “is one of strict liability.” See Penal Law § 15.10. “Strict liability” does not necessarily mean that there is no mental state applicable to any element of the particular offense. It simply means that at least one of the elements of that offense requires no culpable mental state. Id. As stated in the statute, “if an offense or some material element thereof does not require a culpable mental state . . . such offense is one of ‘strict liability.’” Id. (emphasis added). Accordingly, an ordinary possessory offense—requiring awareness of the physical possession of an object—that has at least one element requiring no mens rea is a strict liability offense. Such is the case with Penal Law § 265.01(1). Penal Law § 15.15 establishes the principles for the “Construction of Statutes with Respect to Culpability Requirements.” Penal Law § 15.15(1) provides that, when a statute explicitly includes one culpable mental state in the statutory text (namely: intentionally, knowingly, recklessly or criminally negligent), that mental state is presumed to apply to every element of the crime. Penal Law § 15.15(2) addresses situations where the statutory language does not expressly provide for any culpable mental state. Generally, such statutes, “unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability.” However, the Penal Law does not automatically read a mens rea requirement into statutory silence. Rather, it directs courts to conduct a more subtle inquiry into the Legislature’s intention and to weigh the nature of the prohibited conduct to determine -24- whether any particular mens rea is mandated. See Penal Law § 15.15(2).18 Penal Law Article 15 thus plainly reveals that the Legislature intended to reserve to itself the power to designate some possessory crimes as strict liability offenses. The weapon- possession statute governing gravity knives falls squarely within that category. Interpreted in light of Penal Law Article 15, Penal Law Section 265.01(1) requires proof of the commission of the “voluntary act” of possessing a knife. See Penal Law § 15.00(2). See also People v. Saunders, 85 N.Y.2d 339, 341-342 (1995) (“the corpus delicti of weapons possession under Penal Law § 265.01(1) is the voluntary, aware act of the possession of a weapon, with the additional feature of operability of the firearm”); People v. Cohen, 57 A.D.2d 790, 791 (1st Dept. 1977); People v. Davis, 112 Misc. 2d 138, 140-141 (Crim. Ct. Bronx Co. 1981). Beyond this simple requirement of an aware, voluntary act of possession, however, neither the Penal Law nor any controlling precedent incorporates any further knowledge requirement into the “per se” subdivisions of the weapon-possession statutes. To the contrary, this Court has clearly recognized the “strict liability nature” of Penal Law § 265.01(1), as have courts throughout the state. Saunders, 85 N.Y.2d at 341; see also People v. Brannon, 16 N.Y.3d 596, 599 (2011) (“The Penal Law 18 Notably, in determining whether the Legislature has evinced a clear intent for a statute to be one of strict liability, “there have been few, if any, statutory crimes for which the Legislature has expressly stated,” in the statutory text, “This is a statute of strict liability.” People v. Merriweather, 139 Misc. 2d 1039, 1040-1041 (Dist. Ct. Nassau Co. 1988) (internal citations and quotations omitted). -25- identifies gravity knives as per se weapons and criminalizes the mere possession of one.”) (citing Penal Law § 265.01[1]); People v. Marrero, 69 N.Y.2d 382, 385-86 (1987) (noting that “the weapon possession statute . . . imposes liability regardless of intent”); People v. Miranda, 76 A.D.3d 466, 466 (1st Dep’t 2010) (noting that defendant who had a gravity knife clipped to his pocket was properly arrested “for possessing a per se weapon”), aff’d, 19 N.Y.2d 912 (2012); see also People v. Herbin, 86 A.D.3d 446, 447 (1st Dep’t 2011) (upholding jury instruction that, to convict defendant of possessing gravity knife, jury “was required to find that he knew he possessed a knife, but did not have to know it was a gravity knife”); People v. Berrier, 223 A.D.2d 456 (1st Dep’t 1996) (“Knowledge that the thing possessed answers the description of one of the prohibited instruments is not an element of third-degree criminal possession of a weapon.”); People v. Messado, 49 A.D.2d 560, 560 (1st Dept. 1975) (“[t]he language of the Penal Law [ ] does not require the People to prove mens rea as an element of the crime of possession of a weapon as a felony”); People v. Velasquez, 139 Misc. 2d 822, 823 (Sup. Ct. N.Y. Co. 1988) (although “[a]t a minimum, conviction for possession of any weapon requires proof that the possession was knowing, in the sense that the defendant was aware that the proscribed object was on his person . . . New York courts . . . have generally declined to extend the knowledge requirement to the specific characteristics or nature of the weapon”); Davis, 112 Misc.2d at 139 (“careful examination of section 265.01 of the Penal Law, and its six -26- subdivisions, reveals a clear legislative intention to impose a standard of strict, or absolute, criminal liability”). An analysis of the statutory text of other provisions in Article 265 underscores that the omission of a mens rea requirement in § 265.01(1) was intentional. See People v. Simon, 148 Misc. 2d 845, 846 (Crim. Ct. Bronx Co. 1990) (noting that Penal Law § 265.01[1] “fails to allege a requirement of a culpable mental state” and that “[t]his omission is not a legislative error, but rather reflects the clear intent of the statutory scheme”). Most tellingly, the subsections immediately surrounding Penal Law § 265.01(1) impose explicit mens rea requirements for other possessory crimes. See Penal Law §§ 265.01(2) (possession “with intent to use”); 265.01(7) (“knowingly” possessing a “bullet containing an explosive substance designed to detonate upon impact”), 265.01(8) (possessing “armor piercing ammunition with intent to use”). So do other provisions within Article 265.00. See Penal Law §§ 265.01-a (“knowingly” possessing a rifle, shotgun, or firearm on school grounds); 265.02(3) (“knowingly” possessing a defaced firearm), 265.06 (“knowingly” possessing designated weapons on school grounds), 265.14 (“knowingly” selling a firearm with the aid of a minor). Undoubtedly, the Legislature’s inclusion of an express knowledge or other mens rea requirement in certain subdivisions strongly suggests that the absence of such a requirement from other provisions was calculated to result in strict liability with respect to the distinguishing elements of those provisions. See Simon, 148 Misc. 2d at 847 (the Legislature’s intent to make Penal Law § 265.01[1] a strict liability crime -27- “is highlighted not only by the language of the subdivision which excludes a scienter requirement, but also by the clear inclusion of culpable mental states in subdivisions [2] and [3] of the same statute”);19 Davis, 112 Misc.2d at 139-140 (“[i]t would seem reasonable that if the Legislature had intended a culpable mental state or scienter to be a required element of subdivision [1] of section 265.01 of the Penal Law, it would have specifically included such element as it found necessary to do so with respect to subdivisions [2] and [3]”); see also People v. Ansane, 96 A.D.2d 96, 97 (4th Dept. 1983) (noting that People need not prove defendant’s knowledge of operability of firearm because “[t]he plain language of subdivision [4] of section 265.02 does not require the proving of any such element, and the other language contained in section 265.02 demonstrates the absence of an intention that knowledge of operability should be an element of subdivision [4] [contrast subdivision [3] where the word ‘knowingly’ is employed and see various other sections of article 265 where knowledge or intention are made elements]”); cf. Velasquez, 139 Misc. 2d at 824 (for Penal Law § 265.02(3), which prohibits knowing possession of a defaced firearm, a review of “[t]he statute’s legislative history confirms that the inclusion of the word ‘knowingly’ was not inadvertent,” but rather reflected the specific intent of the Legislature, which 19 The Legislature recently amended Penal Law § 265.01 by removing subsection (3), which prohibits the knowing possession of rifles, shotguns, and firearms on school grounds, from this list of misdemeanor fourth-degree possession offenses and designating it a felony offense under § 265.01-a. See L. 2013, ch. 1 §§ 40-41 (eff. March 16, 2013). -28- was to require the People to prove “defendant’s specific knowledge of a gun’s defacement”). In short, the statutory language of both Penal Law Articles 15 and 265, and of section 265.01(1) in particular, support the conclusion that Criminal Possession of a Weapon under subdivision 265.01(1) is a strict liability offense. And, in accordance with that clear language, the courts of this state have consistently recognized that the aware and voluntary possession of a knife that has the characteristics of a prohibited per se weapon subjects the possessor to criminal liability regardless of any specific mental state on his part with respect to those characteristics. Given that the plain meaning of the language of the statute in question as construed according to specific legislative directives is clear, a resort to extrinsic aids to interpretation is neither necessary nor approved. See McKinney’s Cons. Laws of N.Y., Book 1, Statutes §§ 76, 120; Giblin v. Nassau County Med. Center, 61 N.Y.2d 67, 74 (1984); People v. Graham, 55 N.Y.2d 144, 151 (1982). But even if consideration of such information were proper, the legislative history of both Penal Law Article 15 and Section 265.01(1) would further confirm that the Legislature specifically intended not only to reserve the power to designate some possessory offenses as strict liability offenses, but also to make the possession of gravity knives such a strict liability offense. First, in shaping the Penal Law’s culpability provisions in 1965, the Legislature looked for guidance to the 1962 Model Penal Code (“MPC”). See Denzer and -29- McQuillan, Practice Commentary to Penal Law § 15.00 et. seq., Book 39 at 19 (1967). The Legislature did not adopt the MPC wholesale, however, and the exclusions are telling. For one, the authors of the Penal Law chose not to adopt the MPC’s “Minimum Requirements of Culpability,” which provide that “a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” See Model Penal Code § 2.02(1). The MPC does allow for some offenses of “absolute liability,” but no such offense may be punished as more than a violation. See Model Penal Code § 2.05(1)(a); see also Model Penal Code § 2.05, “Explanatory Note.” Not surprisingly, the comments to § 2.05 proclaim that “[t]his section makes a frontal attack on absolute or strict liability in the penal law, whenever the offense carries a possibility of sentence of imprisonment.” Model Penal Code § 2.05 cmt. 1. The New York Legislature plainly did not embrace the hostility to strict liability embodied in MPC sections 2.02(1), 2.02(3), and 2.05.20 Rejecting those model provisions altogether, the Legislature instead fixed the Penal Law’s minimum culpability requirement as the voluntary act and expressly recognized that an offense requiring no more culpable mental state than a voluntary act “is one of strict liability.” See Penal Law § 15.10. Similarly, where the MPC would automatically interpolate a 20 New York was hardly alone in rejecting the MPC’s stance on strict liability. As commentators have noted, despite widespread adoption of most MPC provisions, “strict liability offenses carrying the possibility of imprisonment still exist in most jurisdictions.” See Model Penal Code and Commentaries, § 2.05 cmt. 1. -30- mens rea requirement into statutory silence, the Penal Law instead directs courts, as noted above, to conduct an inquiry into the Legislature’s intention, and to weigh the nature of the prohibited conduct. See Penal Law § 15.15(2). Perhaps most significantly, the New York Legislature rejected each and every component of the MPC’s section 2.05, which, as described above, imposed rigid limitations on the legislative use of strict liability. This is a clear and unequivocal manifestation of the Legislature’s intention to retain the power to impose strict liability, and further, to confine interpretation of the Penal Law’s culpability requirements to the specific terms of Article 15. The history of section 265.01(1) in particular confirms the Legislature’s intention to hold a person strictly liable for possessing a gravity knife. Since 1909, the New York State Legislature has defined certain items as per se weapons, illegal to possess regardless of the possessor’s intent in carrying them. United States v. Irizarry, 509 F. Supp. 2d 198, 206 (E.D.N.Y. 2007) (citing New York State Statutes, Article 172 § 1897 [1909]). In 1954, the switchblade—defined as “any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife”—was added to this list. L. 1954, ch. 268 § 1. That law contained an exception for craftsmen who possessed a switchblade “for purposes of business, trade or profession, or for use while hunting, trapping and fishing.” Id. Two years later, however, the Legislature eliminated that exception, thus making switchblade possession illegal under any circumstance, even if it were used for the -31- possessor’s employment. L. 1956, ch 587 § 1. The legislative commentary noted that enforcement of the 1954 statute had been “made difficult” because the “purposes of business” defense had been raised frequently and went “far toward vitiating the statute.” New York State Legislative Annual, p. 21 (1956). As an example, the commentary cited a specific, unreported case in which the defendant had been acquitted based on his defense that he “worked for a florist and a knife of some type was necessary in the course of that work,” although his employer and other employees used “ordinary clasp knives.” New York State Legislative Annual, p. 21 (1956) (emphasis in original). The court in that case had noted that it could not imagine a single “business, trade, or profession” in which a switchblade knife was required, rather than any clasp or other straight knife. Id. Therefore, according to the court, to read the statute as conferring a defense only when a switchblade knife—not another type of knife—were necessary to the occupation “would be to effectively excise this phrase from the statute.” Id. The court held that it had no right to excise the phrase—doing so was a legislative matter—but, to give the clause any meaning, “it had to be read as affording a defense if any type of knife were necessary to the occupation.” Id. (emphasis in original). The legislative commentary noted that the defense had come close to rendering the statute toothless because of the “large number of occupations which embrace some use for some kind of a knife, even if the use is as basic as cutting string, sharpening pencils, or opening cartons.” New York State Legislative Annual, p. 21 -32- (1956). The defense was repealed because it permitted to escape liability those whose professions did not require the use of dangerous switchblades, but who were using them anyway. Its repeal was intended to address the “continued hazard” posed by switchblades. Id. at 22. Subsequent efforts to modify the defense were aborted. Id. In the years that followed, the gravity knife—a “slightly different weapon”— became prevalent, especially in New York City. Irizarry, 509 F. Supp. 2d at 206. While a switchblade “has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife,” id., a gravity knife’s “blade leaps out with [only] a flip of the wrist,” thus “circumvent[ing] the law on switchblade knives” since “[t]here is no button needed to open it.” Emma Harrison, Group Seeks Ban on Gravity Knife, New York Times (Dec. 19, 1957). In 1958, the Legislature responded by adding gravity knives to the per se weapons list and criminalizing their sale and possession. L. 1958, ch. 107 § 1. In supporting passage of that law, the New York Police Department labeled gravity knives “inherently dangerous” and noted that its experience “indicate[d] that gravity knives [were] being used increasingly as weapons in the perpetration of such crimes as homicide, assault, rape, and robbery.” Bill Jacket, L. 1958 ch. 107, dated January 9, 1958, at 15-16. Similarly, the legislative history of the federal statute banning switchblades and gravity knives, which was passed that same year, describes the gravity knife as being “[e]very bit as fast as the switchblade” and “as effective a killer.” Switchblade Knives: Hearing Before a Subcommittee of the Committee on Interstate -33- and Foreign Commerce, House of Rep., 85th Cong., 2d Sess. 13, 29 (1958). This history plainly indicates that the Legislature determined that the weapons included in Penal Law § 265.01(1), including gravity knives, were inherently dangerous and thus designated them per se illegal to possess. Moreover, perhaps because of the considerations informing the repeal of the “purposes of business” exception to the switchblade prohibition just two years earlier, no such exception was made in the new gravity knife law. Even in the face of clear statutory text and legislative history, defendant nonetheless maintains that the omission of a mens rea elements was unintentional, claiming that the absence was the merely the result of “drafting history, not legislative design” (DB: 14). This assertion wholly misses the mark. As just demonstrated, the statutory text and legislative history of Penal Law § 265.01(1) reveal the “[p]recise, thoughtful and thorough planning” which “must have been involved in the drafting of this legislation.” People v. Mott, 137 Misc. 2d 757, 759 (Jefferson County Dec. 16, 1987); see also People v. Dolson, 142 Misc.2d 779, 781 (Onondaga County 1989) (“[T]he Legislature took pains to describe and outlaw certain weapons whose potential for quick deployment make them per se too dangerous to possess”). And, in crafting Article 15 of the Penal Law, the Legislature made a conscious decision to reject those portions of the MPC that prohibited the designation of certain offenses as strict liability offenses. -34- Significantly, “the legislature has on numerous occasions amended the law to include additional weapons” as per se weapons. Mott, 137 Misc. 2d at 759; see also DB: 15 (acknowledging numerous amendments to the statute). Had the Legislature meant for a specific mental state to be required, it could easily have incorporated it into the statute on any of those occasions. Indeed, even if it had literally adopted the statute “verbatim” from the former Penal Law (DB: 14 [citing Donnino, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 39, Penal Law 265, Firearms and other Dangerous Weapons, at 408]), the Legislature could have amended the statute to include a specific mens rea. Considering the well-established precedent, set forth above, holding § 265.01(1) to be a strict liability statute and gravity knives to be per se illegal weapons, the Legislature’s inaction speaks volumes. See McKinney’s Cons. Laws of N.Y., Book 1, Statutes, § 191, at comment (“The Legislature will be assumed to have known of existing statutes and judicial decisions in enacting amendatory legislation”).21 As defendant notes (DB: 20 n.9), the Legislature has recently considered multiple amendments to the Penal Law affecting the prohibition against possession of gravity knives. One such amendment would have provided a defense for a defendant 21 It bears noting that defendant relies upon the same canon of statutory construction to assert that the Legislature’s “failure to eliminate the judicially recognized mens rea requirement is strong evidence that it accepts that element” (DB: 16). But, as discussed infra, defendant’s historical argument of a well-established mens rea requirement in Penal Law § 265.01(1) is premised on a misreading of cited precedent (DB: 15) (citing, inter alia, People v. Persce, 204 N.Y. 397, 402 [1912]). -35- who could affirmatively establish that he did not intend to use the knife unlawfully. See S5650-2013/A7177, introduced by the Office of Court Administration and sponsored by Senate Rules Committee and Assemblyman Joseph Lentol, respectively; see also http://open.nysenate.gov/legislation/bill/S5650-2013. Another proposed bill sought to move “gravity knife” from subdivision (1) of § 265.01 to subsection (2), which requires proof of intent to use unlawfully. See S3686-2013/A2259, sponsored by Senator Diane Savino and Assemblyman Dan Quart, respectively; see also http://open.nysenate.gov/legislation/bill/S3686-2013. In noting these pending proposed amendments (DB: 20 n. 9), and in providing a sampling of other jurisdictions’ legislative enactments that require proof of an unlawful purpose in the possession of a gravity knife (DB: 22 n.13), defendant does not appear to dispute that such fine-tuning of a gravity knife prohibition is the province of the Legislature. Indeed, it would be particularly inappropriate for this Court to alter the statutory scheme with the blunt instrument of creative statutory construction when the Legislature is demonstrably quite able to consider measures that are more precisely calibrated to address any perceived shortcoming in the existing weapon-possession laws. See People v. Daly, 33 Misc. 3d 963, 969 (Crim. Ct. N.Y. Co. 2011) (noting that “[t]his court may not substitute its view of the criminality of possession of such a knife for that of the Legislature,” and that any attempt to amend the law with respect to a gravity knife “properly should be addressed to that branch of government”). This Court should decline defendant’s invitation to pre-empt -36- appropriate legislative activity by ruling that a new mens rea element applies to section 265.01(1). Taking another tack, defendant maintains that over “100 years” of New York case law has read a “knowingly” element into Penal Law § 265.01 as the applicable mental state with respect to all elements of the crime by “requir[ing] possession to be both knowing and voluntary” (DB: 15 [citing, e.g., People v. Persce, 204 N.Y. 397 (1912); People v. Visarities, 220 A.D. 657 (1st Dep’t 1927)]). Defendant’s reliance on this case law is misplaced. In Persce, this Court held that a conviction for criminal weapon possession under former Penal Law § 1897 required proof of “knowing and voluntary” possession; the First Department decided similarly in Visarities that mere possession of the prohibited weapon, “known and voluntary,” was illegal under that statute. But both Persce and Visarities were decided decades before the New York Legislature’s enactment of Penal Law Article 15 and its designation of “knowing” as a term of art denoting a defined culpable mental state. Those courts simply used “knowing” as a synonym for what Penal Law § 15.00(2) now refers to as “awareness” of possession. Thus, the Persce and Visarities courts’ reading of the then-existing statutory scheme reflected exactly the same understanding of the weapon-possession prohibition as that of the trial court below in construing Penal Law § 256.01(1) and Article 15. At issue in People v. Cohen, 57 A.D.2d 790 (1st Dep’t 1977), also cited by defendant (DB: 15), was the trial court’s instruction to the jury that the People, in -37- support of a charge under Penal Law § 265.02, did not have to prove that defendant had “any knowledge that he [was] carrying the firearm.” 57 A.D.2d at 791. Unsurprisingly, the First Department reversed the conviction on the ground that the court’s charge abrogated the People’s burden of proving a voluntary act as defined by Penal Law § 15.00(2). Id. But that decision merely enforced the Penal Law’s minimum requirement for criminal culpability—awareness as part of the voluntary act of possession—without requiring any proof that defendant had culpable knowledge that the object he possessed met the specific statutory definition of a firearm. As noted above, the jury instruction in the present case was completely consistent with Cohen. In People v. Ford, 66 N.Y.2d 428 (1985) (DB: 15), this Court made a passing reference to “knowing” possession, with a citation to Cohen. Ford, 66 N.Y.2d at 440 (“[p]ossession third requires only that defendant’s possession be knowing”). But, as just discussed, Cohen addressed the issue of awareness under Penal Law § 15.00(2), not the culpable mental state of “knowing” set forth in section 15.05(2), much less whether that culpable mental state would apply to the aggravating circumstance that the weapon possessed in this case met the statutory definition of a gravity knife. This Court subsequently acknowledged in Saunders, also cited by defendant (DB: 15), that Penal Law § 15.00(2) is the controlling provision, noting that “‘[p]ossession,’ as part of the forbidden act, includes the Penal Law definitional component of ‘voluntary act,’ which incorporates the attribute of awareness of the possession or control.” 85 -38- N.Y.2d at 341 (quoting Penal Law § 15.00[2]). Thus, the Saunders Court explained, “the corpus delicti of weapons possession under Penal Law § 265.01(1) is the voluntary, aware act of the possession of a weapon.” Id. (emphasis added). Accordingly, defendant falls woefully short in claiming a “judicially recognized mens rea requirement” mandating proof of a defendant’s knowledge that the object he possesses meets the specific statutory definition of a per se weapon (DB: 16). 22 B. The Imposition of Strict Liability under Penal Law § 265.01(1) Does Not Offend the Principles of Due Process. In addition to his arguments regarding statutory construction, defendant also argues that, unless the mental state of “knowingly” is read into every element of Penal Law § 265.01(1), the statute could, in violation of the right to due process, render criminal those persons who, like him, “possessed the knife for innocent purposes” (DB: 21). However, the imposition of strict liability in this case not only faithfully adheres to New York’s statutory scheme, it also comports fully with the requirements of due process. It has been consistently recognized that a legislature may, through criminal statutes, protect public safety and welfare without regard to mental culpability. See 22 Defendant’s reliance on the model jury instruction for possession of a per se weapon (DB: 15) is also misplaced, for the pattern charge is based on a misreading of precedent and also erroneously conflates the Penal Law’s requirement of “awareness” of the possessory act with culpable “knowledge” of the nature and capabilities of the object possessed. See C.J.I.2d [N.Y.] Penal Law § 265.01(1) (“a person is guilty of criminal possession of a weapon [ ] when that person knowingly possesses [a per se weapon]”). -39- United States v. Freed, 401 U.S. 601, 607 (1971); Morissette v. United States, 342 U.S. 246, 254 (1952); United States v. Balint, 258 U.S. 250, 251-252 (1922); see also Davis, 112 Misc.2d at 140. Such “public welfare offenses,” even though imposing strict liability, do not violate the due process clause. See Balint, 258 U.S. at 252 (state may punish certain acts without regard to the actor’s intent or knowledge). Public welfare offenses have several distinct characteristics. First, they typically regulate “potentially harmful or injurious items” in the broad interest of protecting public safety. See Staples v. United States, 511 U.S. 600, 607 (1994); Morissette, 342 U.S. at 255. The conduct targeted by such statutes need not be immediate, and often “merely create[s] the danger or probability” of later harm; thus, “whatever the intent of the violator, the injury is the same.” Morissette, 342 U.S. at 256. Moreover, the violator stands in the best position to prevent the harm, simply by exercising reasonable care. Id. at 256-257; Balint, 258 U.S. at 254; see also Freed, 401 U.S. at 609-610. Additionally, public welfare statutes generally impose only “light penalties” such as fines or short periods of incarceration, and convictions for violations of such statutes entail relatively little social stigma. See Staples, 511 U.S. at 616-617; Morissette, 342 U.S. at 256. Finally, in choosing to dispense with a mens rea requirement for a public welfare offense, a legislature may consider the difficulty anticipated in proving guilty knowledge in prosecutions under the statute. See Balint, 258 U.S. at 252. In that regard, where the item or conduct the legislature seeks to -40- regulate is widespread, the inherent difficulty in establishing mens rea in numerous prosecutions under the statute may further justify the imposition of strict liability. See Balint, 258 U.S. at 251-252; Morissette, 342 U.S. at 253-254. An examination of these factors plainly reveals that the prohibition against the possession of a gravity knife provided in Penal Law § 265.01(1) is just such a public welfare statute. As discussed above, historical context strongly suggests that the Legislature acted to ban gravity knives largely because their proliferation presented an imminent danger to the public. See Saunders, 85 N.Y.2d at 343 (noting that the possession laws reflected “the legislative policies specifically targeting weapons possession crimes and seeking to prophylactically intercept the possession and use of weapons in an inordinately armed society”); Irizarry, 509 F. Supp. 2d 198 at 206-207. As is common in public welfare offenses, the widespread possession of gravity knives generally increased the likelihood of injury to the public, and thus the danger remained equally grave whether or not the possession was knowing or intentional. Moreover, the Legislature likely foresaw the fundamental difficulties of proving guilty knowledge in conjunction with the possession of gravity knives. See People v. Wood, 58 A.D.3d 242, 246 (1st Dep’t 2008) (emphasizing that the weapon-possession statute carries the indicia of a public welfare offense, including its “potential for difficulty in proving guilty knowledge under the statute” and “relatively light penalty”). Indeed, were the Penal Law to require proof that a defendant knew the exact characteristics of the object he possessed for criminal liability to attach, the -41- accused defendant would need only claim ignorance to effectively evade prosecution, because such a claim would so often be a plausible one. Absent eyewitness testimony as to a defendant’s handling of the knife on a prior occasion, revealing knowledge of its prohibited function, or the defendant’s own admission of such knowledge, the prosecution would be unable to meet its burden in all but the most unusual cases. See People v. Gordon, 23 N.Y.3d 643, 651 (2014) (“We see no basis for interpreting the law in a way that rewards criminal conduct, or places an insurmountable burden on the People.”). In contrast, a person possessing a gravity knife remains in the best position to avert any harm and, in exercising “no more care than society might reasonably expect,” can readily ascertain the nature of the object he physically possesses. Morissette, 342 U.S. at 256-257. For example, here, defendant claimed that he had used his knife regularly since 2009 for his work, which included plumbing, electrical work, roofing, carpentry, and sheetrocking (Gonzalez: A. 189, A. 191-92, A. 202-03). The regular use of this knife for a variety of purposes obviously provided ample opportunity for defendant to discern the properties and function of the knife. And it certainly should have put a minimally observant defendant “who assumed his responsibilities” on notice that he possessed a knife that could be opened in the prohibited fashion. Morissette, 342 U.S. at 256. Thus, the Legislature was justified in requiring “a degree of diligence for the protection of the public,” Id. at 257, and in deciding to place the onus on the possessor of a gravity knife to be aware of the -42- dangerous characteristics of the knife. See Balint, 258 U.S. at 254 (in enacting Anti- Narcotic Act, “Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided”). Significantly, possession of a per se weapon under Penal Law § 265.01(1) is only a class A misdemeanor, under which violators are subject to a prison sentence of not more than one year. See Penal Law § 70.15(1); see also Staples, 511 U.S. at 616-18 (noting that Legislature could not have intended to designate as a public welfare offense a felony punishable by up to 10 years’ imprisonment). To be sure, here, defendant received an indeterminate sentence of three and one-half to seven years in prison. But that was because his prior conviction—one of many—elevated the crime from a misdemeanor to a felony. See Penal Law § 265.02(1). The specific conduct for which defendant was convicted, the possession of a gravity knife, could have resulted in a prison sentence of no more than one year; that his recidivism warranted additional punishment says nothing about the provision’s validity as a public welfare statute. See Penal Law §§ 70.06, 265.02(1).23 23 Notably, as Judge Friedmann observed in People v. Davis, 112 Misc. 2d 138, 141 (Crim. Ct. Bronx Co. 1981), the theoretical rigidity of strict liability may also be mitigated in practice. Thus, prosecutors may exercise discretion in charging crimes under Article 265’s strict liability provisions, and a defendant’s interests may also be protected by the exercise of judicial discretion. As the Davis court noted, “when sympathetic or mitigating circumstances are supported by the evidence,” the trial judge may elect, “in the interests of justice,” to dismiss the information or indictment. 112 Misc.2d at 141. See also CPL -43- (Continued…) The presence of these factors distinguishes the instant case from Staples, upon which defendant relies (DB: 17). In Staples, the defendant was convicted under the National Firearms Act (“NFA”) for possessing an unregistered semiautomatic rifle modified to be capable of fully automatic fire. Defendant asserted that his “alleged ignorance” of any automatic firing capacity “should have shielded him from criminal liability.” 511 U.S. at 603. The Supreme Court, in reversing defendant’s conviction, ultimately decided that the NFA should not be treated as a public welfare offense, and implied a mens rea element into the statute. See id. at 619. That decision rested in part on the fact that the NFA imposes an affirmative registration requirement on persons whose gun ownership is otherwise lawful. The Staples court found that imposition fundamentally inequitable because, in a country where gun ownership is presumed to be lawful, nothing would alert a person to the possibility of regulation. 511 U.S. at 614. Read literally to impose strict liability, the NFA would punish not the voluntary act of possession, but rather a passive omission: the failure to register. See id. at 603. Notably, the Supreme Court, well prior to Staples, had already rejected the notion that an affirmative duty to act may be imposed on a citizen who has no reason to suspect his behavior is subject to regulation. See §§ 170.40, 210.40. The trial court may also choose to blunt the force of a strict liability statute by exercising the sentencing discretion available under the Criminal Procedure Law. See Davis, 112 Misc.2d at 141; CPL Article 370. -44- ______________________ (…Continued) Lambert v. California, 355 U.S. 225, 229-230 (1957).24 The Court’s decision in Staples also rested in part on the fact that the statute could impose steep penalties—up to 10 years’ imprisonment—on violators. See Staples, 511 U.S. at 610, 615. Finally, the Court in Staples stressed that its holding was a “narrow one” dictated by a “commonsense evaluation of the nature of the particular device” subjected to congressional regulation. Id. at 619. The present case is thus readily distinguishable from Staples. As shown above, the language and legislative history of Penal Law Articles 15 and 265 plainly indicate that § 265.01(1) is a public welfare offense that may, consistently with due process, involve strict liability. See Balint, 258 U.S. at 252-254; see also People v. Voltaire, 18 Misc. 3d 408, 412 (Crim. Ct. New York Co. 2007). And the Staples Court reaffirmed that the omission of a mens rea requirement is permissible in connection with public welfare offenses. Staples, 511 U.S. at 606-07. In notable contrast with the NFA, the weapon possession offense defined by Penal Law § 265.01(1) does not impose an affirmative duty such as that invalidated by Lambert, nor does it punish a passive failure to act in violation of Staples. Instead, 24 Importantly, Lambert arrived at no broad conclusion concerning the constitutionality of strict liability statutes. Indeed, the Court pointedly observed that “[w]e do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient.” 355 U.S. at 228. The Staples court similarly restricted the application of its “narrow” holding. See 511 U.S. at 619-620 (noting that the Court, like others before it “attempt[s] no definition” of “crimes that require a mental element and crimes that do not”). -45- the provision imposes strict liability for the possession of an item that the Legislature had properly determined to be inherently dangerous. And in contrast to the decade- long sentence provided for violation of the federal statute, first-time gravity knife offenders face a maximum one-year term. See Penal Law § 70.15(1). Thus Staples simply does not constitute a valid basis upon which to fundamentally alter New York’s weapon possession statutes. Defendant claims that the Legislature could not have meant for § 265.01(1) to reach common utility tools like the one he had in his possession, for such utility knives were “neither designed nor manufactured as gravity knives,” they are not “outwardly foul” and are, instead, used “for innocent purposes” such as “cutting sheet rock,” “carpeting,” and “window screens,” and they are widely used, having been “legally” sold in stores until 2010 (DB: 17-20, 21-22) (citation and internal quotations omitted).25 These claims do not bear the slightest scrutiny. 25 Although defendant repeatedly contends that he “legally” purchased the knife in 2009 (DB: 2, 3 n.4, 7 n.5, 12, 19, 22), there is no basis in the record for such a contention. Defendant did not purport to know whether, at the time of his purchase, the standard (non- razor) knife blade in the two-in-one knife he purchased opened and locked into position by the use of gravity or centrifugal force. If it did, then the knife clearly fit the definition of a prohibited per se weapon and could not have been purchased “legally.” If the knife did not operate in the prohibited fashion at that time, it may have been “legally” purchased, but that would have no proper bearing on defendant’s guilt, for it was obviously an illegal gravity knife at the time of its recovery, either because the tension on the spanner-head pivot screw had loosened over time or because defendant had purposely adjusted it. See http://www.ehow.com/how_7190380_loosen-pivot-screw-knife.html. In any event, it bears repeating that there is no basis in the record for defendant’s assertion that the gravity knife in defendant’s possession was “legally” purchased or sold in 2009 (DB: 2, 3 n.4, 7 n.5, 12, 19, 22). -46- Defendant’s argument that only those objects that are “outwardly ‘foul’” and have hardly any legitimate uses as a matter of law should be deemed per se weapons, the mere possession of which is criminalized (DB: 17-18 [citing Persce, 204 N.Y. at 402; Visarities, 220 A.D. at 658; and People v. Small, 157 Misc. 2d 673 (Sup. Ct. N.Y. Co. 1983)]), wholly misses the mark. The Legislature included gravity knives in the per se portion of the weapon-possession statute based on a determination that gravity knives, like the other instruments named in that statute, were inherently dangerous. Indeed, the ban on gravity knives resulted from the Legislature’s recognition that such knives “contained the same basic characteristics as the switchblade”—which had been banned earlier—yet “circumvented the law because of the manner in which the blade was deployed.” Irizarry, 509 F. Supp. 2d 198, 206-07 (citing Harrison, Group Seeks Ban on Gravity Knife). And the Legislature defined a “gravity knife” based only how it functioned, not based on its outward appearance or design. Penal Law § 265.00(5). Thus, the Legislature added gravity knives to the list of per se weapons because, due to their ability to be deployed quickly with one hand into a locked position, they posed the same danger as switchblades. L. 1958, ch. 107 § 1; see also Bill Jacket, L. 1958, ch. 107, dated January 9, 1958, at 15-16. The knife possessed by defendant posed exactly the type of danger that led the Legislature to classify it as a per se weapon.26 See People v. Polk, 166 A.D.2d 177, 178 (1st Dept. 1990) (“a gravity knife 26 Defendant remarkably asserts that the knife recovered from him “does not -47- (Continued…) . . . is, of course, a weapon per se” and “has no legitimate use as a matter of law”); see also People v. Ramos, 193 Misc.2d 564, 568 (Crim. Ct. Bronx Co. 2002) (“a metal pipe is not a per se weapon – such as a gun or a gravity knife – the mere possession of which without more is a crime”). Although a person might have a legitimate reason to possess a knife of some sort that has a sharp blade and can be placed easily into a pocket or tool box, there is no legitimate reason that such a knife should need to open into a locked position using only gravity or centrifugal force.27 Put another way, while a gravity knife—or obviously operate as a gravity knife,” because “only . . . trained officers” could open the knife in the prohibited fashion, while his counsel could not (DB: 22 n.12). This assertion is based on a complete misrepresentation of the record, which nowhere indicates that either officer received any special training on how to open a gravity knife. To the extent that defendant is claiming that his trial counsel tried repeatedly, to no avail, to open the knife during the course of the trial (id.), he fails to cite any portion of the record to support that claim. The People’s review of the record indicates only one occasion during trial when counsel attempted to open the knife. But the court instructed counsel not to do so, for fear that he would injure himself (Nadel: 39). In any event, even if a gravity knife “could not be shown to lock in place by a flick on every try, that would not negate operability under P[enal] L[aw] § 265.00(5).” People v. Daly, 33 Misc. 3d 963, 967 n.3 (Crim. Ct. N.Y. Co. 2011) (citing, inter alia, People v. Smith, 309 A.D.2d 608, 609 [1st Dep’t 2003] [affirming conviction where, unlike the instant case, the gravity knife “malfunctioned” on some of officer’s attempts to operate it in open court]); see also People v. Cavines, 70 N.Y.2d 882 (1987) (fact that handgun misfired once during operability test did not negate proof of operability). 27 The sharp blade of a razor or knife is capable, in and of itself, of causing seriously physical injury, the danger is undoubtedly increased by the aggravating factor of such a blade opening and locking into place upon the mere use of gravity or centrifugal force. See, e.g., People v. Catala, 44 A.D.3d 388, 388-89 (1st Dep’t 2007) (upholding conviction of second- degree gang assault where, inter alia, police officer observed defendant in possession of knife or box cutter shortly after assault); People v. Diaz, 21 A.D.3d 58 (1st Dep’t 2005) (sufficient evidence of first-degree gang assault where defendant and others slashed victim with box -48- ______________________ (…Continued) (Continued…) even a switchblade or other per se knife—may be capable of being used for legitimate innocent purposes, such as cutting sheet rock and carpeting, it is never necessary to use such an unduly dangerous knife for these purposes.28 And it is therefore no less reasonable to prohibit the cutting of sheet rock or carpet with a gravity knife than with a switchblade or other per se bladed weapon. Indeed, as discussed above, although the Legislature initially carved out an exemption for the use of switchblades for the “purposes of business, trade or profession,” L. 1954, ch. 268 § 1, it very quickly realized the unworkability of such an exemption, eliminating it within two years, L. 1956, ch 587 § 1. That is because an increasingly large number of defendants had attempted, just as defendant is cutter); People v. Walos, 229 A.D.2d 953 (4th Dep’t 1996) (sufficient evidence that victim sustained serious physical injury as a result of defendant’s actions in slashing face, thigh and back with box cutter); see also People v. Brown, 100 A.D.3d 1035 (3d Dep’t 2012) (the “utility knife” used as part of defendant’s “employment” caused cut “12 inches long and up to three inches deep”; although evidence was insufficient to prove serious physical injury, it established the intent to inflict such injury and supported conviction for attempted first- degree assault); People v. Thompson, 245 A.D.2d 321 (2d Dep’t 1997) (no reasonable view of evidence that defendant caused merely physical injury, not serious physical injury, when he slashed victim in hand with a box cutter, resulting in a “permanent loss of function”); accord People v. Lawrence, 256 A.D.2d 358 (2d Dep’t 1998). 28 It bears noting that, although defendant claims that “[n]obody disputes that [he] possessed the knife for innocent purposes” (DB: 21), this claim is disingenuous and ignores the salient fact that the People had no occasion to either prove or dispute the reasons for defendant’s possession of a per se weapon; proof of his aware and voluntary possession and the operability of the knife as a gravity knife sufficed. See 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, with the additional feature of operability of the firearm”). -49- ______________________ (…Continued) attempting here, to evade conviction by arguing that they had used switchblades in their occupations, even when their jobs did not require the use of such dangerous knives and could have been performed through the use of other knives that were not per se dangerous weapons. See New York State Legislative Annual (1956) at 21-22. To now permit defendant to raise a defense that earlier had gone “far toward vitiating the [strict liability weapon-possession] statute,” id. at 21, would be to intentionally embrace the same unintended, but deleterious, result of the switchblade exemption: evasion of liability by those defendants whose professions did not require the use of inherently dangerous gravity knives, but who were using them anyway. In that regard, defendant can find no solace in People v. Munoz, 9 N.Y.2d 51, 54-55 (1961) (DB: 18). In Munoz, this Court invalidated a law making it a crime for any person under twenty-one to possess “any knife or sharp pointed or edged instrument which may be used for cutting or puncturing.” People v. Munoz, 9 N.Y.2d 51, 54-55 (1961). That overly-broad language, the Court found, covered innocuous items such as “knitting needles” or a “fountain pen.” Id. at 56-57. In stark contrast to that law, and its overbreadth in reaching harmless and quotidian objects, Penal Law § 265.01(1) covers only those items that, given their historical use, the Legislature found to be inherently dangerous. Defendant fares no better on his reliance on Irizzary, the only case he advances as supporting precedent that actually addresses a gravity knife. First, Irizarry is a federal non-habeas proceeding simply discussing New York State law; as such, it is -50- not precedent that is binding upon this Court. See Ehrlich v. Town of Glastonbury, 348 F.3d 48, 58 n. 14 (2d Cir. 2003). Moreover, as defendant implicitly acknowledges (DB: 20-21), Irizarry did not address the issue presented in this case, i.e., what mens rea is required to prove possession of a gravity knife under Penal Law §§ 265.01(1), 265.02(1). Rather, that case dealt solely with whether, on the facts, the police officer’s observations had provided him with a reasonable suspicion that a crime was being committed, thus justifying his stop and frisk of the defendant. Irizarry, 509 F. Supp. 2d at 210. To be sure, Judge Weinstein went further and opined in dicta that the Legislature’s intent in enacting the gravity knife statute was “to ban only those items that are manufactured as weapons,” not those that are used by workers as common tools. Irizarry, 509 F. Supp. 2d at 209. But neither the statutory text, the legislative history extensively cited in the decision, nor any New York State case interpreting the statute requires a knife to have been designed and manufactured specifically to be a gravity knife in order to fall within the statutory prohibition. As stated above, the Penal Law defines “gravity knife” based only on how the knife operates, making no mention of how the knife was designed or manufactured. See Penal Law § 265.00(5); see also Dolson, 142 Misc. 2d at 780 (noting that a knife met one characteristic of a gravity knife, in that it opened by centrifugal force “although it is difficult to say whether this was possible when it was new, or whether by alteration or use this has become possible”). Thus, to the extent that Judge Weinstein’s opinion in Irizarry was -51- meant, as defendant claims, to distinguish “the utility knife” he carried from knives that, although technically fitting the characteristics of a gravity knife, were not manufactured as weapons and, instead, regularly used as tools (DB: 20-22), that interpretation is flatly at odds with the statutory text, the legislative history and well- established precedent. Finally, that various models of “Husky” brand utility knives may have been widely sold at the time defendant says he purchased his “two in one” model knife (DB: 19) in no way disestablishes its inherent dangerousness or undermines its illegality. Although defendant proclaims the wide possession and use of his particular model of Husky knife (DB: 21 [claiming that 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”] [citation and internal quotations and parenthesis omitted]), he provides no sales figures for the model at issue in this case to support that claim. And simply referring to his gravity knife as a “Husky” reveals very little, if anything, of its description or popularity, for the term “Husky” does not denote a particular model of knife, or even a specific type of tool. “Husky” is a brand name encompassing numerous categories of tools and other work products, even furniture, sold at Home Depot.29 Moreover, several different models of knives are sold under 29 See http://www.homedepot.com/s/husky?NCNI-5. -52- the Husky brand.30 Thus, to represent, as defendant does, that more than a million Husky knives were sold nationwide in 2006 alone (DB: 20) reveals nothing about the volume of sale of his specific model or whether it has anything in common with the other knives sold, other than the Husky brand name. Indeed, defendant’s “two in one” knife appears to represent a fairly unusual and atypical knife within the Husky line of knives. Although Home Depot currently sells two models of Husky two-blade knives, these models do not look like or operate in the same manner as defendant’s knife, which evidently has been discontinued.31 The distinctive features and current unavailability of defendant’s knife undermine his claim that it is essentially the same Husky knife used by “tens of thousands” of other people (DB: 22). In fact, as even defendant acknowledges (DB: 3 n.4, 22), in 2010, following a large-scale investigation into the sale of illegal knives by retailers in New York, Home Depot and other retailers entered into agreements with the New York County District 30 See http://www.homedepot.com/s/husky%20knife?NCNI-5. 31 See http://www.homedepot.com/p/Husky-Dual-Knife-Medium-008-120- HKY/202057248; http://www.homedepot.com/p/Husky-2-4-in-Twin-Blade-Folding- Utility-Knife-97214/204757636 (of note, New York is listed among six jurisdictions to which neither knife will be shipped). Notably, even the 2007 user review that defendant represents as describing his knife (DB: 22 n.12) does not exactly match his model. Although the model described in the user review shares several characteristics with the knife in evidence, it lacks both the distinctive red button and the metal belt clip found on defendant’s knife; it also includes a compartment for blade storage that is missing from defendant’s knife, presumably replaced by the metal belt clip. -53- Attorney under which they relinquished their profits from the sale of such knives within the previous four years, agreed to end the future sale of such knives, and turned over their stocks of such knives to the District Attorney’s Office. See Laura Italiano, The ‘Honed’ Depot, New York Post (June 18, 2010); John Eligon, 14 Stores Accused of Selling Illegal Knives, New York Times (June 17, 2010). Thus, these retailers recognized that some knives that they had been selling openly and widely had been determined to be unlawful. Obviously, the agreement with Home Depot did not prohibit sales of all models of Husky utility knives, for some models are still available to be purchased by and shipped to New York customers.32 Although defendant appears to suggest that his knife was covered by the Home Depot agreement (DB: 3 n.4, 21-22), the record does not disclose whether the specific model of Husky knife defendant possessed was prohibited under the 2010 agreement, and there is no basis in the record for making any assumption in that regard. In any event, whether the model of defendant’s knife was widely sold at the time of purchase and whether it was covered by the 2010 agreement are entirely irrelevant matters. If the knife operated in the prohibited fashion when defendant possessed it in 2011, it was an illegal per se weapon. 32 See http://www.homedepot.com/p/Husky-4-5-in-Folding-Retractable-Lock- Back-Utility-Knife-97212/204757629 (New York not listed among jurisdictions to which knife will not be shipped). -54- * * * In sum, statutory text, legislative history, and binding caselaw all demonstrate that Penal Law § 265.01(1) was meant to criminalize per se possession of gravity knives. Nothing in the Penal Law, precedent, policy or the Constitution requires this Court to upset settled law by judicially engrafting a knowledge element onto an offense purposefully defined as a strict liability crime by the Legislature. POINT II DEFENDANT’S SUPPRESSION CLAIM IS UNREVIEWABLE. IN ANY EVENT, THE RECOVERY OF DEFENDANT’S GRAVITY KNIFE WAS LAWFUL (Answering Defendant’s Brief, Point II). Before this Court, defendant continues to press his claim that Sergeant Nadel acted unlawfully in removing a gravity knife from his back pocket. Specifically, defendant claims that there is “no basis in the record” for a finding that Nadel had probable cause to arrest him; nor is there record support for the alternative justifications for the sergeant’s stop of defendant (DB: 36, 46-48). At the conclusion of the suppression hearing, the Supreme Court credited Nadel’s testimony and determined that, given defendant’s belligerent actions in a crowded subway station, the sergeant had probable cause to arrest defendant for disorderly conduct. The court further determined that the sergeant’s request for defendant to move away from the edge of the platform amounted to, at most, a common-law inquiry and, more likely, a -55- simple request for information. Finally, the court concluded that, based on Nadel’s extensive experience and a belief that he had seen an illegal switchblade in defendant’s pocket, the sergeant was entitled to remove from that pocket what turned out to be a gravity knife. The Appellate Division agreed with those findings and conclusions, and upheld the hearing court’s denial of defendant’s suppression motion. As a threshold matter, defendant’s suppression claim is unreviewable because his contention that Sergeant Nadel did not act reasonably during the subway encounter necessarily involves a factual analysis regarding the actions of both defendant and the sergeant, rendering the issue a mixed question of law and fact. See Part A, infra. In any event, defendant’s claim is meritless. Based on defendant’s erratic and alarming actions on the subway, Sergeant Nadel had probable cause to issue defendant a summons for disorderly conduct. And, based on his knowledge as a trained and experienced police officer, Sergeant Nadel was completely justified in seizing from defendant’s pocket what he believed to be an unlawful switchblade knife, and then placing defendant under arrest. See Parts B and C, infra. A. Defendant’s Suppression Claim Challenging a Probable Cause Determination Made by the Lower Courts Presents an Unreviewable Mixed Question of Law and Fact. As a threshold matter, defendant’s contention that Sergeant Nadel lacked probable cause, or any other basis, to remove the gravity knife from his pocket presents a mixed question of law and fact. Because there is ample record support for -56- the rulings made by the Supreme Court and Appellate Division, this Court has no power to review defendant’s contention on the merits. At the hearing, Nadel testified that he and two fellow officers had been patrolling the 125th Street and Lexington Avenue subway station on the weekday morning of April 14, 2011 when defendant emerged from a subway train and began shouting obscenities at the officers from a short distance away, while flailing his arms in a violent manner. Defendant’s actions, Nadel testified, drew the attention of approximately 20 to 30 people in the vicinity, whom defendant attempted to engage by directing complaints about the officers to them, and these passersby moved away from defendant as he walked up the stairway. After Nadel followed defendant up the stairs with the intent to issue him a summons for disorderly conduct, he noticed defendant standing along the edge of the upper-level platform; for the purposes of safety, Nadel directed defendant to step to the center of the platform, which defendant did. That is when Nadel, who was directly behind defendant, observed what, based on his training and experience, he suspected was a switchblade knife. Thereafter, he reached into defendant’s pocket and removed the knife, which, after testing, was confirmed to be a gravity knife—the blade opened and locked into place upon a flick of the sergeant’s wrist. Nadel then arrested defendant (Nadel: A. 10-22, A. 24-27, A. 29-36). In ultimately determining that Nadel had acted lawfully during his encounter with defendant, the suppression court weighed and analyzed Nadel’s testimony, -57- credited that testimony, drew reasonable inferences from it, and announced findings of fact (Decision: A. 69-71). Those factual findings and legal conclusions were upheld by the Appellate Division. Gonzalez, 112 A.D.3d at 441 (A. 2-3). Quite appropriately, both courts determined that defendant’s actions were sufficient to create a risk of alarm and inconvenience to the public, and that Sergeant Nadel had probable cause to believe that defendant had committed disorderly conduct, permitting him to take the measures he did. Both courts also determined that Nadel’s request for defendant to move to the center of the subway platform did not exceed a common-law inquiry and, more likely, constituted only a simple request for information. In non-capital criminal cases, this Court has jurisdiction to review only questions of law. See N.Y. Const. Art. VI § 3; CPL § 470.35. It lacks the power to review a mixed question of law and fact, which requires the weighing of the nature and quality of the particular circumstances at hand, such as the officer’s knowledge, training, and experience; whether the officer’s gun was drawn; whether and what verbal commands were given; the content and tone of any such verbal commands; whether the person was prevented from moving; how many officers were involved in the encounter; and where that encounter took place. See People v. Bora, 83 N.Y.2d 531, 535 (1994); People v. Chestnut, 51 N.Y.2d 14, 22 (1980). The ability to decide a mixed question of law and fact is reserved for lower courts, which are able to make credibility determinations and findings of fact from competing inferences. People v. -58- Harrison, 57 N.Y.2d 470, 477 (1982); People v. McRay, 51 N.Y.2d 594, 601 (1980). A mixed question of law and fact is thus beyond the review power of this Court, unless it can be said as a matter of law that the inferences drawn by the lower courts were unreasonable and without any basis in the record. See People v. Francois, 14 N.Y.3d 732 (2010); Harrison, 57 N.Y.2d at 477. Cases turning on the reasonableness of police conduct during street encounters almost always present unreviewable mixed questions of law and fact. See e.g., People v. Baker, 20 N.Y.3d 354, 359 n.1 (2013) (“In the typical case, probable cause determinations involve mixed questions of law and fact that are beyond our further review power if supported by any evidence in the record.”); People v. Williams, 17 N.Y.3d 834, 835 (2011) (“The reasonableness of a seizure [and] the existence of probable cause or reasonable suspicion … [are] mixed questions of law and fact that are beyond this Court’s review unless there is no record support for the determinations of the court below”); Francois, 14 N.Y.3d at 733 (“The Appellate Division’s determination that the officer’s conduct did not elevate his encounter with defendant from a common-law inquiry to a seizure necessitating reasonable suspicion constitutes a resolution of a mixed question of law and fact that is supported by the record evidence”); People v. Wheeler, 2 N.Y.3d 370, 373-74 (2004) (reasonableness of suspicion that defendant was armed and dangerous is mixed question of law and fact); People v. McIntosh, 96 N.Y.2d 521, 524 (2001) (“whether police conduct in any particular case conforms to De Bour is a mixed question of law and fact”); People v. -59- Greenidge, 91 N.Y.2d 967, 969 (1998) (“determinations relating to the seizure of [a] defendant . . . involve mixed questions of law and fact”). Although defendant wishes it were otherwise (DB: 23-24) (citing Baker, 20 N.Y.3d at 359 n.1), his case is no exception. To be sure, this Court in Baker reviewed as a matter of law the probable cause determination made by the lower courts. 20 N.Y.3d at 359 n.1. But Baker was not a “typical case,” id., because “[t]he facts giving rise to [Baker’s] disorderly conduct arrest [were] undisputed.” Id. at 357. Indeed, the police testimony at the Baker suppression hearing was “uncontradicted.” Id. at 358. Undisputed facts and uncontradicted police testimony in that case thus “distill[ed]” the issue of probable cause to a purely legal question. Id. at 359 n.1. See also People v. Oden, 36 N.Y.2d 382, 384 (1975) (question of law presented where facts undisputed, only one inference can reasonably be drawn, and credibility is not an issue). In stark contrast, here, defendant disputed the facts presented by Sergeant Nadel and questioned his credibility. See People v. Howard, 22 N.Y.3d 388, 403 (2013) (The rule precluding review of mixed questions of law and fact “applies where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn.”) (quoting Harrison, 57 N.Y.2d at 477) (internal quotations and emphasis omitted). Defendant’s testimony at the suppression hearing diverged from Nadel’s account in key respects. He asserted, for example, that upon his arrival at the 125th Street subway station, he noticed Nadel and his fellow officers -60- blocking people from using the stairway while they “played” with their cell phones. Defendant also maintained that he had politely asked Nadel to move so that transit passengers could pass by; this polite request, according to defendant, resulted in a violent outburst by the officers, who proceeded to scream at defendant, grab his bag of tools, take out from his pocket a utility knife and wallet, and then handcuff and arrest him (Gonzalez: A. 42-45, A. 50-56). Given the disputed nature of the facts in defendant’s case, the issue of probable cause does not, unlike in Baker, “distill[ ]” to a purely legal question before this Court. Baker, 20 N.Y.3d at 359 n.1. Rather, the issue is a mixed question of law and fact. See Oden, 36 N.Y.2d at 384. Thus, this Court’s review should be limited to determining whether there is “any evidence in the record” to support the conclusion that Nadel had acted reasonably during the encounter with defendant. Baker, 20 N.Y.3d at 359 n.1; see also Harrison, 57 N.Y.2d at 478 (noting that “reasonableness of conduct can rarely be resolved as a matter of law even when the facts are not in dispute”). As discussed above, there is ample record support for the lower courts’ decisions denying defendant’s suppression claim. In any event, as is set forth more fully below, defendant’s claim fails on the merits because, as the lower courts found, Nadel actions during his encounter with defendant were entirely justifiable. -61- B. Sergeant Nadel’s Removal of the Gravity Knife from Defendant’s Pocket was Completely Justified by His Probable Cause to Issue Defendant a Summons for Disorderly Conduct. Even if this Court were to determine that it may reach the merits of defendant’s claim, that claim would fail because Sergeant Nadel acted reasonably and appropriately during his encounter with defendant. As the courts below correctly held, in light of defendant’s disruptive actions in a crowded subway station, the sergeant acquired probable cause to pursue defendant and issue him a summons for disorderly conduct. Upon observing what he thought, based on his experience, to be a switchblade knife in defendant’s back pocket, the sergeant properly recovered the knife from defendant. He then discovered, upon testing, that the knife was an illegal gravity knife and rightfully arrested defendant. It is well settled that “reasonableness” is the touchstone in evaluating police conduct during street encounters between officers and citizens. Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977); People v. Wheeler, 2 N.Y.3d 370, 374 (2004). Police intrusion will be deemed reasonable so long as there is a proper basis justifying it at its inception, and it is fairly related in scope to the circumstances as known to the police. Terry v. Ohio, 392 U.S. 1, 19-20 (1968); People v. De Bour, 40 N.Y.2d 210 (1976). Reasonableness is determined on a “case-by-case” basis, People v. Hollman, 79 N.Y.2d 181, 192 (1992), considering the totality of the circumstances and keeping in mind that police-citizen encounters are “dynamic situation[s]” in which the basis for suspicion may escalate as events unfold before the officer’s eyes. De Bour, 40 -62- N.Y.2d at 225. And, because the Fourth Amendment’s commands are “practical and not abstract,” they must be interpreted “in a commonsense and realistic fashion.” United States v. Ventresca, 380 U.S. 102, 108 (1965). In De Bour, this Court defined four escalating levels of police action in street encounters, each corresponding to a different predicate needed to justify a specific type of intrusion. At level one, a police officer must have an “objective credible reason” that is “not necessarily indicative of criminality” in order to request information in a non-threatening manner. DeBour, 40 N.Y.2d at 223. At level two, a “founded suspicion that criminal activity is afoot” triggers the “common-law right to inquire” and permits interference with a citizen’s liberty to a degree “short of a forcible seizure.” Id. At that level, the police can issue some verbal commands and ask questions that are accusatory in nature, focusing on the possible criminality of the person approached. See Hollman, 79 N.Y.2d at 191; People v. Bora, 83 N.Y.2d 531, 535 (1994). A level-three encounter occurs when an officer has a “reasonable suspicion that a particular person” has committed, or is about to commit, a crime. De Bour, 40 N.Y.2d at 223. In such circumstances, the Criminal Procedure Law “authorizes a forcible stop and detention of that person.” Id. The fourth level, probable cause, authorizes an arrest. Id.; see also CPL § 140.10(1); CPL § 140.50(1), (3); Hollman, 79 N.Y.2d at 184-85. Probable cause does not require “proof to a mathematical certainty, or proof beyond a reasonable doubt.” People v. Mercado, 68 N.Y.2d 874, 877 (1986); People v. Miner, 42 N.Y.2d 937, 938 -63- (1977) (“The evidence needed to establish probable cause to justify an arrest does not have to be such as to warrant a conviction.”); see also Draper v. United States, 358 U.S. 307, 312 (1959) (sufficient evidence to convict and probable cause to arrest require different “quanta and modes of proof”). Indeed, “the inquiry is not as to defendant’s guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer’s belief” that the suspect was guilty. People v. Shulman, 6 N.Y.3d 1, 25-26 (2005) (internal quotation marks and citations omitted). Thus, probable cause exists when, from the standpoint of a reasonable person who has the same training and experience as the arresting officer, it appears more probable than not that the suspect committed the offense. People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981); People v. McRay, 51 N.Y.2d 594, 602 (1980) (noting that probable cause requires “merely 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”) (citing, e.g., Oden, 36 N.Y.2d at 384-85). While setting forth this multi-tiered framework, this Court has recognized that “the facts in suppression cases are not always neatly categorized” and has therefore “favored general guidelines for the resolution of individual cases.” Wheeler, 2 N.Y.3d at 373 (citing People v. Prochilo, 41 N.Y.2d 759 [1977]). Indeed, “De Bour did not attempt to establish an inflexible legal framework by which to measure police conduct.” People v. Finlayson, 76 A.D.2d 670, 676 (2d Dep’t), lv. denied, 51 N.Y.2d 1011 (1980). Since street encounters “are of an endless variety with no two being -64- precisely alike,” any “[a]ttempt to catalogue them rigidly within four classifications” would “prove virtually impossible.” Id. For that reason, “[c]ourts simply must not . . . attempt to dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle” to be considered. Chestnut, 51 N.Y.2d at 22-23. Through the course of conducting their lawful duties, police officers will invariably encounter situations in which they may develop a reasonable fear for their safety or that of their fellow officers. In that regard, an officer may take appropriate self-protective measures when he lawfully confronts an individual whom he reasonably believes to be armed or otherwise dangerous to himself or others. Wheeler, 2 N.Y.3d at 374; Chestnut, 51 N.Y.2d at 22. The reasonableness of the officer’s belief depends upon an examination of the totality of the “precipitating and attending circumstances,” People v. Salaman, 71 N.Y.2d 869, 870 (1988), including “the officer’s observation[s]” and “his personal experience[s].” People v. Batista, 88 N.Y.2d 650, 655 (1996). Application of these principles makes clear that Sergeant Nadel was completely justified in pursuing defendant with the intent to issue a summons for disorderly conduct and then arresting him after discovering that defendant was carrying an unlawful gravity knife in his pocket. As pertinent to this case, a person commits disorderly conduct when “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,” that person “makes unreasonable noise” -65- or “in a public place . . . uses abusive or obscene language . . ..” Penal Law § 240.20(2),(3); see also People v. Bakolas, 59 N.Y.2d 51, 52 (1983). Subsection two penalizes intentionally making noise in public “of a type or volume that a reasonable person, under the circumstances, would not tolerate.” Bakolas, 59 N.Y.2d at 53. Subsection three penalizes the public use of obscenity that is “coupled with an intent to create a risk of public disorder.” People v. Tichenor, 89 N.Y.2d 769, 775 (1997). Often, the same conduct will violate both statutory subsections. See, e.g., People v. Zherka, 25 Misc. 3d 1210(A), 2009 Slip. Op. 52018(U), at *5 (Crim. Ct. N.Y. Co. 2009). Here, there is no doubt that Sergeant Nadel had probable cause to issue defendant a summons for disorderly conduct.33 To begin, it is beyond cavil that defendant became unreasonably noisy and used abusive and obscene language on the 125th Street and Lexington Avenue subway station on the weekday morning of April 14, 2011. In fact, defendant readily admits before this Court that he shouted obscenities at the police officers (DB: 24). This admission reflects a complete reversal of course from his hearing testimony, during which defendant stated that he was 33 As the hearing court properly noted, the sergeant had probable cause to arrest defendant, but chose instead to issue a summons (Decision: A. 69-71). See CPL § 150.20(1) (permitting a police officer who is authorized to arrest a person without a warrant to issue an appearance ticket, or summons, instead); see also CPL § 140.10(1) (authorizing arrest without warrant for “[a]ny offense” when officer has “reasonable cause to believe that such person has committed such offense in his or her presence”); People v. Maldonado, 86 N.Y.2d 631, 635 (1995) (“Reasonable cause means probable cause.”). -66- nothing but polite and calm when he asked Sergeant Nadel to move aside from the stairway so as to allow him to proceed upstairs (Gonzalez: A. 44, A. 52-55). Defendant’s abandonment of his earlier version of events is hardly surprising. After all, the evidence credited by the hearing court clearly demonstrated that defendant directed expletives—among them, “who the fuck do you think you are”—at the three police officers in an angry tone of voice that was loud enough to attract the attention of transit passengers on the other end of the platform, all while flailing his arms wildly. Surely, a reasonable person with six years of experience as a New York City police officer would conclude that defendant had “ma[de] unreasonable noise” and “in a public place . . . use[d] abusive or obscene language.” Penal Law § 240.20(2), (3). Having conceded as much, defendant contends that his use of obscenities against the officers did not provide a reasonable basis for Sergeant Nadel to conclude that defendant had intended to cause, or recklessly created a risk of causing, “public inconvenience, annoyance, or alarm” (DB: 24, 38-44 [emphasis added]). This contention is completely unavailing. Of course, as this Court has emphasized, “critical to a charge of disorderly conduct is a finding that [the] disruptive statements and behavior were of a public rather than an individual dimension.” Baker, 20 N.Y.3d at 359. In that respect, a person commits 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.’” People v. Weaver, 16 N.Y.3d 123, 128 (2011) (quoting -67- People v. Munafo, 50 N.Y.2d 326, 331 (1980)). In assessing whether an act carries “public ramifications,” factors to consider include: “the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted,” as well as “any other relevant circumstances.” Weaver, 16 N.Y.3d at 128. And, given that there is often no direct evidence of a defendant’s mental state, the factfinder may infer it “from the defendant’s conduct and the surrounding circumstances.” People v. Bracey, 41 N.Y.2d 296, 301 (1977); see also People v. Steinberg, 79 N.Y.2d 673, 682 (1992). Put another way, the factfinder may infer that a defendant intended or recklessly disregarded “the natural and necessary and probable consequences of his actions.” People v. Getch, 50 N.Y.2d 456, 465 (1980). The obvious disruptiveness of defendant’s invectives against the police on a crowded subway platform during a weekday morning solidly provided Sergeant Nadel with a reasonable basis to infer that defendant had intended to cause, or at the very least recklessly created the risk of causing, public inconvenience, annoyance, or alarm. Obviously, the fact that defendant chose to unleash his anger in a busy subway station led to that very reasonable inference, regardless of whether other people were actually drawn to the incident. See People v. Terry, 34 Misc. 3d 144(A), *1 (App. Term, 1st Dep’t 2012) (“The trial court, as factfinder, was warranted in concluding that defendant’s conduct—including yelling and cursing very loudly at the arresting -68- officer—in a crowded subway station recklessly created a risk of a potential or immediate public problem”) (citations and internal quotations omitted); see also People v. Lepard, 83 A.D.3d 1214, 1215-16 (3d Dep’t 2011) (where defendant shouted obscenities during traffic stop in vicinity of diner on a Sunday morning, officer “could have reasonably believed that the diner was occupied by patrons” and, therefore, “that defendant was recklessly creating a risk of public inconvenience, annoyance or alarm”); People v. McDermott, 279 A.D.2d 361, 361 (1st Dep’t 2001) (probable cause to believe defendant intended to cause public inconvenience based on “defendant’s obstreperous behavior on a midtown Manhattan street corner”); Goldstein v. Metro-North Commuter Railroad Co., 207 A.D.2d 723, 724 (1st Dep’t 1994) (in action for alleged unlawful arrest of passenger on commuter train, court held that probable cause existed to arrest plaintiff for disorderly conduct where officer had reasonable belief that plaintiff’s abusive and obscene statements were causing an immediate danger of a breach of the peace); People v. Shapiro, 96 A.D.2d 626, 626-27 (3d Dep’t 1983) (probable cause existed for disorderly conduct where defendant engaged in raucous and disruptive behavior toward university public safety officers on campus road, using obscene language and obstructing the officers’ vehicle). But, significantly, defendant’s antics did indeed draw the attention of a number of people on the subway platform. This certainly cemented Sergeant Nadel’s reasonable conclusion that defendant’s conduct was of a public, rather than individual, dimension. See People v. Todaro, 26 N.Y.2d 325, 327 (1970) (affirming -69- conviction for disorderly conduct where defendant refused to move and told police “you can’t tell us to fucking move” on street corner in front of other people). See also People v. Welch, 289 A.D.2d 936, 936 (4th Dep’t 2001) (officers had probable cause to arrest for disorderly conduct where, after police questioned his presence in alleyway, he “became very loud and abusive and began using obscene language as a crowd began to form”); People v. Brunner, 248 A.D.2d 241, 242 (1st Dep’t 1998) (probable cause for defendant’s arrest for disorderly conduct was provided by “defendant’s fighting with another person in the middle of a street while a crowd watched”); People v. Brown, 116 A.D.2d 727, 728 (2d Dep’t 1986) (police had probable cause to arrest for disorderly conduct when defendant shouted to police officer, “What the fuck is your problem, you can’t do shit,” in a public service area on thruway and was “noticed by other persons who had entered the service area”); Zherka, 25 Misc. 3d 1210(A), at *5 (defendant engaged in disorderly conduct by yelling, among other obscenities, “You shouldn’t be a fucking cop” and “I pay your fucking salary” to a police officer in public building where auction was being held, thus causing a crowd to assemble to “watch the commotion in the hallway”).34 34 These cases undermine defendant’s contention that there is no “public harm when people’s attention is drawn to an individual dispute out of curiosity or entertainment value” (DB: 40-41). Moreover, it bears noting that all but one of defendant’s supporting cases, i.e., Baker, involve the sufficiency of proof at trial or the facial sufficiency of an information. See Defendant’s Brief at 38, 40-41 (citing, e.g., People v. Jones, 9 N.Y.3d 259 [2007] [facial sufficiency of information]; People v. Pritchard, 27 N.Y.2d 246 [1970] [proof at trial]). It is -70- (Continued…) Not only did defendant’s obstreperous conduct invite the attention of other transit passengers, but, as defendant admits, his actions also caused a number of these passengers to “step[ ] aside” and avoid his path as he continued his verbal tirade against the police officers (DB: 24). Defendant’s situation thus stands in marked contrast to the one in People v. Jones, 9 N.Y.3d 259, 261-63 (2007) (DB: 41), where this Court held that an information charging the defendant with disorderly conduct was jurisdictionally insufficient when it alleged only that the defendant and other individuals were standing on a public sidewalk, not moving, thereby causing people to walk around them. Unlike the “apparently innocent” and passive conduct at issue in Jones, 9 N.Y.3d at 262, here, defendant’s affirmative acts of shouting obscenities and flailing his arms wildly led to people deliberately avoiding him and moving away from his path. These actions by fellow passengers supplied Sergeant Nadel with ample basis to infer that defendant’s actions were causing public inconvenience, annoyance or alarm. See People v. Pegues, N.Y.L.J., August 24, 1998, at 27, col. 4 (App. Term, 1st Dep’t) (probable cause to arrest for disorderly conduct existed where defendant well established that a showing of probable cause is far less stringent than the standard of proof beyond a reasonable doubt needed to sustain a conviction, see Miner, 42 N.Y.2d at 938 (1977); see also Shulman, 6 N.Y.3d at 25-26, and also less onerous than the standard for facial sufficiency of an information, see CPL §§ 100.15(3), 100.40(1)(c) (information must contain non-hearsay allegations which, if true, establish every element of the offense); People v. Alejandro, 70 N.Y.2d 133, 135-36 (1987). -71- ______________________ (…Continued) taunted and yelled at officer in Grand Central station during morning rush hour and caused 20 people to stop and walk around him). Finally, any possible doubt about the public dimension of defendant’s conduct was put to rest when he admittedly (DB: 42) decided to direct his diatribe against the police officers at transit passengers sharing the same staircase with him. In continuing to bad-mouth the police officers as he walked up the stairs and in yelling to the other passengers, “who do they think they are, what do they think they’re doing” (Nadel: A. 11, A. 14-15, A. 27), defendant obviously “extend[ed] [the situation] beyond . . . the individual disputants to a point where it bec[ame] a potential or immediate public problem.” Weaver, 16 N.Y.3d 123, 128 (2011) (citation and internal quotations omitted). Indeed, defendant’s comments, specifically directed at people other than the officers, carried at the very least a substantial and unjustifiable risk of creating public disorder, in that his comments could have incited others either to challenge him in a combative manner or to join in his anger against the officers. In that regard, Baker, relied upon extensively by defendant, is readily distinguishable (Defendant’s Brief at 38-41). In Baker, the defendant was involved solely in a dispute with police officers, and in no way directed any of his statements to another person. Thus, the defendant created no unjustifiable risk of public involvement in his personal affairs with the police. Here, in stark contrast, defendant was not satisfied with directing his complaints solely to the police. Rather, he admittedly commented and complained to other people around him. Whether he -72- hoped to garner sympathy or to invite others to join in a public haranguing of the police, defendant must have known that his actions carried a serious and unjustifiable risk of creating a public disturbance. Moreover, unlike the officers in Baker, Nadel and his fellow officers lacked the benefit of being “safely ensconced inside [a] patrol car,” which would have “diluted the risk” that these other people “would join forces with defendant and gang up on” the officers. Baker, 20 N.Y.3d at 362. Defendant maintains, however, that because he did not actually “touch,” “incite,” or “threaten” anyone, and “nobody made a complaint to the officers,” his verbal “outburst” was not sufficient to have disturbed the public in a busy subway station (DB: 24, 41-42). He is sorely mistaken. This Court has made abundantly clear that whether a defendant’s conduct has actually caused a public inconvenience is irrelevant to a charge of disorderly conduct. See Todaro, 26 N.Y.2d at 328-29; see also Baker, 20 N.Y.3d at 360 (“We have clarified that the risk of public disorder does not have to be realized but the circumstances must be such that defendant’s intent to create such a threat (or reckless disregard thereof) can be readily inferred”). To be sure, here, there was no evidence that defendant actually inconvenienced or alarmed the public by touching, threatening, or inciting other subway passengers. But defendant certainly flailed his arms wildly and shouted angry comments to other passersby. Simply because, fortuitously, defendant managed not to strike another person with his erratic arm gestures, and no other person was provoked by his -73- comments about the officers, did not obviate the very real and unjustifiable risk that he created by his actions. In this case, for reasons unknown, defendant instigated an obscene verbal outburst against the police. His angry tone, stridently abusive and obscene language, and comments to others bystanders obviously justified the very reasonable inference on Sergeant Nadel’s part that defendant had intended to cause, or risked causing, a public breach of peace. See, e.g., Terry, 34 Misc. 3d 144(A), at *1; Pegues, N.Y.L.J., August 24, 1998, at 27, at col. 4; Brown, 116 A.D.2d at 728. Accordingly, armed with probable cause to issue defendant a summons for disorderly conduct, Nadel lawfully followed him up the stairs. The escalation of the situation after Sergeant Nadel approached defendant on the second level of the subway station provided him with ample justification to remove the knife from defendant’s pocket and then arrest him. First, Sergeant Nadel’s request for defendant to move away from the edge of the platform was an entirely reasonable safety precaution, for the sergeant understandably was apprehensive about issuing a summons to a demonstrably angry and potentially unstable individual at such a dangerous spot. See Finlayson, 76 A.D.2d at 678-79 (“An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to [himself] or others.”); Wheeler, 2 N.Y.3d at 374 (noting the propriety of -74- an officer’s self-protective measures where he “had reason to believe that defendant could also be armed and dangerous”); accord Chestnut, 51 N.Y.2d at 22. Then, once defendant complied and moved to the center of the platform, Nadel’s observation of what appeared to him, from his years of experience, to be a switchblade in defendant’s pocket justified its removal. As the hearing court correctly found (Decision: A. 71), the sergeant’s removal of the knife was proper not only because a switchblade is a per se unlawful weapon, see Penal Law § 265.01(1), but also because the possession of weapons and other dangerous instruments is prohibited within the subway system. See 21 N.Y. Code Rules & Regs. 1050.8. Moreover, as the court also correctly determined (Decision: A. 71), Nadel’s concern for his own safety was reasonable, given that defendant had just been acting erratically with a clear bias against the sergeant and his fellow police officers. See People v. Miranda, 19 N.Y.3d 912, 913-14 (2012) (upon approaching the defendant in a park at dusk to issue a summons for trespass and seeing a knife clipped to his pocket, the officer acted lawfully in asking defendant what it was and removing it from the pocket); People v. King, 102 A.D.2d 710, 710 (1st Dep’t 1984) (search for safety reasons permitted even in case of suspected violation). Once Sergeant Nadel retrieved the knife, tested it, and found it to be an illegal gravity knife, he indisputably had probable cause to arrest defendant. See De Bour, 40 N.Y.2d at 223. C. Even in the Absence of Probable Cause to Issue a Summons for Disorderly Conduct, Sergeant Nadel’s Request for Defendant to Step to the Center of the -75- Subway Platform Constituted Nothing More than a Level-One Request for Information Although the hearing court correctly found that Sergeant Nadel had probable cause to issue defendant a summons for disorderly conduct and, thus, to approach him on the second level of the platform, the court alternatively held that Nadel’s request for defendant to move to the center of the platform was, “at most,” a common-law inquiry and, “more likely,” a simple “request for information that would be appropriate under a level one stop” (Decision: A. 71). The Appellate Division upheld these findings. Gonzalez, 112 A.D.3d at 441. Defendant contends that this “alternative justification” was erroneous, because Nadel’s stop exceeded the scope of intrusion permitted under both a level-one request for information and a level-two common-law inquiry (DB: 45-48). Defendant’s contentions are unpreserved and, in any event, meritless. As an initial matter, defendant did not set forth his present appellate contentions in an appropriate manner before the suppression court. At the suppression hearing, defense counsel devoted nearly the entirety of his argument to arguing that the police lacked probable cause to issue defendant a summons for disorderly conduct (A. 59-63). And, in closing, he merely added that “stopping defendant was unlawful. They did not have enough justification to do that under any Dabore [sic] analysis” (A. 62-63). Defendant never argued, as he does now, that Sergeant Nadel’s request for him to move exceeded the scope of intrusion permitted -76- under both a common-law inquiry and a request for information. Indeed, defendant advanced no argument whatsoever for why the police lacked justification under either DeBour level. Given defendant’s failure to do so, his present contentions are unpreserved and beyond this Court’s power of review. See CPL §§ 470.05(2), 470.35; People v. Gray, 86 N.Y.2d 10, 19 (1995). Under the circumstances of this case, Sergeant’s Nadel’s actions in asking defendant to move to the center of the subway platform were entirely reasonable and constituted no more than a request for information, requiring an objective credible reason. DeBour, 40 N.Y.2d at 223. The evidence at the suppression hearing revealed that neither Sergeant Nadel nor his officers initiated the encounter with defendant. Rather, it was defendant who confronted the officers with expletives and verbal abuse, while also flailing his arms and disturbing other subway passengers in his vicinity. And defendant’s verbal outburst did not end there. In fact, it extended onto the stairs, as defendant directed his complaints against the officers to other passengers on those stairs, and caused them to move away from him. Given defendant’s unprovoked and obstreperous behavior, there was certainly an objective credible reason “not necessarily indicative of criminality” that permitted Sergeant Nadel to follow defendant up the stairs and then approach him on the second level. Id. After all, defendant evinced the trademarks of an unstable individual, and it was entirely reasonable for Nadel to monitor his whereabouts while in the subway. -77- Once Nadel arrived on the second platform and saw defendant on the edge of the subway platform for trains traveling in the opposite direction from the train he had recently exited, the sergeant asked defendant to step to the middle of the platform. This was an entirely reasonable safety precaution in light of defendant’s erratic behavior just minutes earlier and his clear anger toward the police. And this request hardly constituted any type of seizure. See People v. Flynn, 15 A.D.3d 177, 178 (1st Dep’t 2005) (“The police in this case merely asked defendant to come over to their location, which he did voluntarily”). Indeed, the Court and courts throughout the state have found that similar requests by a police officer do not even rise to a level-two inquiry, but instead constitute no more than a level-one request for information. See People v. Reyes, 83 N.Y.2d 945, 946 (1994) (that officer “yelled” at the defendant, “‘Hey, stop, excuse me’ or ‘Stop, hey, stop, police,’ or words to that effect” constituted “nothing more than a permissible request for information based on some objective credible reason”), cert. denied, 513 U.S. 991 (1994); People v. Montero, 284 A.D.2d 159, 160 (1st Dep’t 2001) (officer’s query, “Police. Can you hold up a minute?”, was a level-one request for information); People v. Mitchell, 223 A.D.2d 729, 729-30 (2d Dep’t 1996) (officer’s words, “Fellows, could you hold it up” and “Just stop there, fellows, don’t leave” constituted “no more than a request for information”); People v. Burks, 2003 WL 22462055, 2003 Slip. Op. 51304(U), at *1 -78- (App. Term., 1st Dep’t 2003) (asking defendant to “hold up” was justified by objective credible reason and did not constitute seizure).35 Defendant contends that because Nadel testified that defendant was “not in fact free to walk away” (DB: 46), the sergeant’s request for defendant to move amounted to an unjustified seizure. Defendant is mistaken. Nadel’s subjective beliefs as to whether defendant was free to leave are not dispositive and, in fact, have little bearing on whether defendant was seized by the officers. See generally People v. Hicks, 68 N.Y.2d 234, 240 (1986) (noting that this Court has “rejected” the “wholly subjective belief of the officer, as well as that of the citizen,” as “standards for determining whether a de facto arrest has taken place”) (citing, e.g., Chestnut, 51 N.Y.2d at 20; People v. Yukl, 25 N.Y.2d 585, 589 [1969]); see also People v. Massillon, 289 A.D.2d 103, 104 (1st Dep’t 2001) (“fact that the detaining officer characterized his action as an arrest is not dispositive under the circumstances”). Moreover, Sergeant Nadel’s request was not remotely intimidating, considering the lack of evidence that he had drawn his gun, threatened to use force, touched 35 Even if Nadel’s request could be construed as more than a level-one request for information, it certainly did not, as the hearing court noted, rise beyond the level of a common-law inquiry, which permits greater restrictions of movement than the one at issue here (Decision: A. 71); see People v. Stevenson, 55 A.D.3d 486, 487 (1st Dep’t 2008) (defendant was not seized when officer blocked defendant’s path in order to conduct a common-law inquiry); People v. Cherry, 30 A.D.3d 185, 186 (1st Dep’t 2006) (same); see also People v. Grunwald, 29 A.D.3d 33, 34 (1st Dep’t 2006) (defendant’s “liberty of movement” was not significantly interrupted when officer told defendant to “[c]ome over here,” and moved to confront defendant face-to-face when defendant tried to walk away). -79- defendant, or engaged in any coercive conduct. Given that Nadel’s objective conduct in no way communicated to defendant that he was not free to leave, the sergeant’s unspoken belief clearly had no effect on defendant’s voluntary decision to step to the center of the platform. Thus, defendant’s claim that he was forcibly seized is belied by the record. Similarly, defendant gains no traction with his claim that Nadel’s request was unjustified because Nadel was neither trying to dispel nor verify a suspicion under a level-two common-law inquiry, nor even making a level-one request for information, but was, instead, admittedly intending to issue a summons to defendant (DB: 46, 47- 48). The sergeant’s subjective intent for making the request to defendant is irrelevant as long as the evidence before the suppression evinces a reasonable basis for his actions. And, as discussed above, the record set forth objective and credible reasons for Nadel’s approach of defendant and subsequent request for defendant to move, including defendant’s abusive and disruptive behavior minutes earlier and the sergeant’s concern for his safety. Because the evidence plainly established that Sergeant Nadel’s conduct was lawful and reasonable throughout his interaction with defendant, the hearing court correctly denied defendant’s motion to suppress the gravity knife. * * * In sum, defendant’s suppression claim presents a mixed question of law and fact that is not reviewable by this Court, for the evidence in the record amply supports -80- the hearing court’s findings and conclusions, which were properly upheld by the Appellate Division. In any event, Sergeant Nadel acted appropriately at every juncture of his encounter with defendant. The hearing court properly concluded that Nadel could have reasonably inferred that defendant’s abusive and disruptive behavior on a busy subway platform created a risk of causing other passengers inconvenience, annoyance or alarm, and, thus, the sergeant was justified in following defendant to issue him a summons for disorderly conduct. The court was correct in further concluding that Nadel appropriately removed the gravity knife from defendant’s pocket when, after asking defendant to move to the center of the platform, he observed what appeared to be a switchblade knife in defendant’s back pocket. Thus, this Court should uphold the denial of defendant’s suppression claim. -81- CONCLUSION The order of the Appellate Division, First Department, should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov BY: _______ MALANCHA CHANDA Assistant District Attorney of Counsel PATRICK J. HYNES MALANCHA CHANDA Assistant District Attorneys Of Counsel September 25, 2014 -82-