| People v Lazcano |
| 2009 NY Slip Op 07047 [66 AD3d 1474] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Raul Lazcano,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedFebruary 6, 2006. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of assault inthe second degree (Penal Law § 120.05 [2]), defendant contends that County Court erredin refusing to suppress a knife seized from his jacket pocket during a pat-down search. We agree.Although "a defendant who challenges the legality of a search and seizure has the burden ofproving illegality, the People are nevertheless put to the burden of going forward toshow the legality of the police conduct in the first instance" (People v Berrios, 28 NY2d361, 367 [1971] [internal quotation marks omitted]; see People v Hernandez, 40 AD3d 777, 778 [2007]). Here, thePeople failed to meet that burden. They established that the police were justified in stoppingdefendant and conducting the pat-down search (see People v McGiboney, 62 AD3d 812 [2009]; People vHethington, 258 AD2d 919 [1999], lv denied 93 NY2d 971 [1999]), but they failedto establish that the officer who conducted the pat-down search was justified in reaching intodefendant's pocket and seizing the knife. That officer did not testify at the suppression hearing,and the testimony of the officer who witnessed the pat-down search was insufficient to establishthat the search of defendant's pocket was legal (see People v Barreto, 161 AD2d 305,307 [1990], lv denied 76 NY2d 852 [1990]; cf. Matter of Jose R., 88 NY2d 863,865 [1996]; see generally People v Diaz, 81 NY2d 106, 109 [1993]). We neverthelessconclude that there is no reasonable possibility that the court's error in refusing to suppress theknife might have contributed to the conviction, and thus the error is harmless beyond areasonable doubt (see generally People v Crimmins, 36 NY2d 230, 237 [1975]; People v Freeman, 46 AD3d1375, 1377 [2007], lv denied 10 NY3d 840 [2008]).
The court also erred in permitting the People to present testimony on rebuttal that the courthad refused to allow them to present on their direct case. Defendant did not "open the door" tothat rebuttal testimony when he testified on direct examination by defense counsel, and the courterred in permitting the People to "range[ ] beyond the defendant's direct examination 'in order tolay a foundation for the tainted evidence on rebuttal' " (People v Rahming, 26 NY2d 411,418 [1970], quoting People v Miles, 23 NY2d 527, 543 [1969], cert denied 395US 948 [1969]). We conclude, however, [*2]that the court's errorin admitting the rebuttal testimony is harmless (see People v Sulayao, 58 AD3d 769, 770-771 [2009], lv denied12 NY3d 822 [2009]; People v Gant, 291 AD2d 912 [2002], lv denied 98NY2d 675 [2002]; see generally Crimmins, 36 NY2d at 241-242). Finally, contrary todefendant's contention, the court properly exercised its discretion in refusing to allow defensecounsel to cross-examine the victim with respect to her alleged drug use (see People vFoley, 257 AD2d 243, 254 [1999], affd 94 NY2d 668 [2000], cert denied531 US 875 [2000]; see generally People v Freeland, 36 NY2d 518, 525 [1975]).Present—Hurlbutt, J.P., Martoche, Centra, Green and Gorski, JJ.