| People v Mendez |
| 2009 NY Slip Op 09700 [68 AD3d 662] |
| December 29, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Lawrence Mendez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Andrew I. Gerber of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered July 7, 2008,convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the thirddegree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimouslyreversed, on the law, the motion to suppress granted and the indictment dismissed.
The arresting officer's observations warranted a common-law inquiry into whether defendantwas carrying an illegal gravity knife, but they did not provide reasonable suspicion of criminalitywarranting a seizure. The officer testified that he saw a portion of a knife handle and a clip ondefendant's pocket, leading him to believe that it was a folding knife. When the officer askeddefendant "if he had anything on him that he shouldn't have" such as a "knife or a gun,"defendant, who was not engaged in any suspicious behavior, said he had a knife. The officer didnot see any characteristics of an illegal type of knife, and testified, in essence, that the onlyreason he suspected the knife might be a gravity knife is that any folding knife could, uponinspection, turn out to be a gravity knife. While the officer could have lawfully asked to see theknife, he lacked reasonable suspicion justifying a seizure (compare People v Fernandez, 60 AD3d 549, 549 [2009] [officerhad reasonable suspicion where observed item was "at least likely to be a gravity knife"]). Wehave considered and rejected the People's remaining arguments. Concur—Mazzarelli, J.P.,Catterson, Moskowitz, Richter and Manzanet-Daniels, JJ.