| People v Miranda |
| 2010 NY Slip Op 06462 [76 AD3d 466] |
| August 24, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v CarlosMiranda, Respondent. |
—[*1] The Bronx Defenders, Bronx (Kathryn E. Miller of counsel), for respondent.
Order, Supreme Court, Bronx County (Michael A. Gross, J.), entered on or about October 9,2007, which granted defendant's motion to suppress evidence, unanimously reversed, on the lawand the facts, the motion denied, and the matter remanded for further proceedings on theaccusatory instrument.
At the suppression hearing, the People called one witness, a police officer. Supreme Court"adopt[ed] his testimony in its entirety," finding that the officer, who was not cross-examined atthe hearing, "testified candidly, credibly and to the best of his recollection." The officer testifiedthat he approached defendant in a park in which various illegal activities occurred, for thepurpose of issuing him a summons for being in the park after dusk. When defendant was takingout his identification in response to the officer's request, "his jacket exposed the knife that wasclipped to his pocket." The officer was then asked, "Can you describe how you first observedthis knife?" He responded: "As he moved to get the ID lifting the jacket exposed the knife thatwas clipped to his pocket." Asked what his reaction was, the officer testified that "[w]hen I sawit, I asked him 'What was that?' As he is giving me a response, I proceeded to grab the knife andI got it out." The knife turned out to be a gravity knife, and the officer placed defendant underarrest for possessing a per se weapon (Penal Law § 265.01 [1]).
Under these facts the motion to suppress should have been denied. The officer's approachand request for identification unquestionably were lawful and defendant concedes as much.When the officer saw the knife, he was justified in removing it from defendant's person (see People v Davenport, 9 AD3d316 [2004], lv denied 3 NY3d 705 [2004]). That the officer did not have probablecause to conduct a full-blown search of defendant's person and arrest him until the officersubsequently ascertained that the knife was a gravity knife is of no moment. Supreme Court alsoerred in concluding that the officer acted unlawfully because he "only saw a portion of the knifesticking out of defendant's pocket" and that "only a portion of the handle [of the knife] wasvisible to him." As is clear from the testimony quoted above, the officer unequivocally testifiedthat he saw a knife. No evidence at the hearing undercut or contradicted that testimony. To besure, after the foregoing testimony, the officer also was asked by the prosecutor, "Once you sawwhat you [*2]believed to be a knife in his pocket, how did youremove that object?" However, there was no antecedent testimony from the officer that hemerely believed the object to be a knife or that it was "in" rather than clipped to defendant'spocket. A question that by its terms assumes a fact does not constitute evidence of that "fact."Nor did the officer in responding to this question ratify the unsupported assumptions in thequestion. Rather, the officer responded simply by saying, "With my right hand by removing itfrom his pocket." The officer's testimony that the knife was "clipped to [defendant's]pocket" (emphasis added) is not contradicted by his testimony that he removed the knife"from" (emphasis added) his pocket. Even assuming the question did create an ambiguityconcerning what the officer saw, granting the motion nonetheless was erroneous. The officer'srepeated and unequivocal testimony that he saw a knife clipped to defendant's pocket was morethan sufficient to meet the People's burden of going forward, and defendant failed to meet hisultimate burden of establishing the illegality of the officer's conduct (see People vBerrios, 28 NY2d 361 [1971]). Moreover, even assuming that the officer "only saw a portionof the knife," it hardly would follow that he did not see a knife. Finally, we note that neither theknife nor the object by which it was clipped to defendant's pocket was introduced into evidenceand no testimony was elicited concerning the nature or size of that object.Concur—Gonzalez, P.J., Tom, Friedman, McGuire and Acosta, JJ.