| People v Herrera |
| 2010 NY Slip Op 06685 [76 AD3d 891] |
| September 23, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Appellant, v Rolando Herrera, Respondent. |
—[*1] Robin S. Steinberg, The Bronx Defenders, Bronx (Matthew Caldwell of counsel), forrespondent.
Order, Supreme Court, Bronx County (Caesar Cirigliano, J.), entered on or about May 28,2008, which, in a prosecution for criminal possession of a weapon in the fourth degree andunlawful possession of a knife, granted defendant's motion to suppress physical evidence and astatement, reversed, on the law and the facts, the motion denied, and the criminal complaintreinstated.
On the night of March 11, 2007, the arresting detective and his partner were on motor patrolin an area known for gang activity. At approximately 11:30 p.m., defendant walked in front ofthe detective's unmarked car at a deliberately slow pace, giving the appearance that he was tryingto interfere with the flow of traffic. As the police car passed defendant, the detective observed inthe light of the street lamps a shiny, silver-colored metallic object clipped to defendant's rightrear pants pocket. In addition to the object's curved clip on the outside of the pocket, the top ofthe object visibly protruded above the top of the pocket. Based on his training and experience,involving 50 to 60 arrests for weapon possession, the detective believed the object to be a gravityknife or a small-caliber handgun.
After stopping his car, the detective and his partner approached defendant and asked him tostop. The officers did not draw their guns. When he was two to three feet behind defendant, thedetective pulled the shiny object out of defendant's pocket. He did not frisk defendant or questionhim before taking the object, which proved to be an illegal gravity knife (see Penal Law§ 265.01 [1]).
The detective and his partner placed defendant under arrest and drove him to the precinctstation. While in transit, defendant spontaneously stated that he had been keeping the knife forhis own safety, based on his belief that someone he knew was trying to kill him.
Defendant moved to suppress the knife and the statement he made in the police car. At thehearing, the arresting detective, who was the sole witness, testified to the facts set forth above.The detective testified that, before seizing the object clipped to defendant's pocket, he"recognized it to be something that [he] had experienced." In fact, he was "90 percent sure that itwas either a knife or some other weapon." "Basically," he said, "the way the clip is designed andcurved" was "typical of clips that are . . . part of knives." The detective rejecteddefense counsel's suggestion on cross examination that there was a significant likelihood that theobject [*2]might have been something innocuous, such as amoney clip, a cell phone or a tape measure. The detective testified that money clips and cellphone clips do not curve upward, as did the clip on the object in defendant's pocket. As to thesuggestion that the object might have been a tape measure, the detective noted that, had theobject been a tape measure, the top of it (which stuck out of the pocket) would have been"square." When asked why he took the object from defendant's pocket, the detective answered:"Because I feared for my safety. And I didn't know whether it was a knife or [a] handgun."
The motion court granted suppression. It found the detective's testimony credible except forthe assertion that he feared for his safety, which, in the court's view, was undercut by thedetective's admission that he and his partner did not draw their sidearms as they approacheddefendant. The court also noted that, although defendant's obstruction of traffic was "obnoxious,"his conduct was not otherwise suspicious, in that he did not act furtively, did not reach for his hipor back pocket, and never tried to flee. The court further rejected the prosecution's contention thatthe detective's actions were justified by reasonable suspicion, noting that the detective could notabsolutely exclude the possibility that the clipped object was lawful until he removed it fromdefendant's pocket. Defendant's statement was suppressed as the fruit of his arrest based on thedisapproved seizure of the knife. This appeal by the People ensued.
We reverse and deny the motion. The detective's firm belief, based on his training andextensive experience, that the shiny object he saw clipped to (and protruding from) defendant'spocket was a gravity knife or small-caliber handgun, even if not amounting to an absolutecertainty, constituted reasonable suspicion of criminal activity justifying a level-three forciblestop under People v De Bour (40 NY2d 210, 223 [1976]; see People v Fernandez, 60 AD3d549, 549 [2009] [officer's belief that object in defendant's pocket was a gravity knife, "evenif (its) illegal status (could not) be determined without testing it," constituted "reasonablesuspicion . . . that defendant possessed an illegal weapon"]; People v Carter, 49 AD3d 377[2008], lv denied 10 NY3d 860 [2008] [suppression was properly denied based onfinding that officer "saw what appeared, based on his experience, to be an illegal gravity knifeclipped to defendant's clothing, and that he did not merely see a clip"]).[FN*]Given his reasonable suspicion that defendant was carrying an illegal weapon, the detective actedproperly in securing the suspicious object by immediately removing it from defendant's pocket(Fernandez, 60 AD3d at 550, citing People v Batista, 88 NY2d 650, 654 [1996])."Patting down defendant's pocket would have served no useful purpose, since the knife wasvisible and a pat down would have revealed what the officer already knew" (Fernandez,60 AD3d at 550). Specifically, had the detective patted down defendant's pocket, he would haveconfirmed only that the object clipped inside was most likely a gravity knife (see PenalLaw § 265.00 [5] [the blade of a gravity knife remains inside the handle or sheath until"released . . . by the force of gravity or the application of centrifugal force"]).Further, the detective's seizure of the knife was, in fact, less physically intrusive to defendantthan a frisk would have been, and did not involve restraining him.
While the motion court did not credit the detective's testimony that he "feared for [his]safety," the detective's fear for his safety is not dispositive of whether the knife was properly[*3]seized. Even had the detective testified that he had no fear forhis safety, "[t]he facts giving rise to the constitutionally permissible intrusion by the officer[would] not [be] negated by [that testimony]" (People v Batista, 88 NY2d at 654). Giventhe detective's firm and well grounded belief that the object in defendant's pocket was an illegalweapon, he had "reasonable suspicion that defendant was armed or dangerous" (id.), andthat was sufficient ground for denial of the suppression motion.
We note that defendant's reliance on People v Best (57 AD3d 279 [2008], lv denied 12 NY3d756 [2009]) is misplaced. In Best, this Court affirmed the denial of suppressionbecause "[t]he officer's observation of a clip and part of a knife protruding from defendant'spocket, which he believed to be a gravity knife based on prior experience, provided, atleast, a founded suspicion of criminal activity, permitting the officer to make a nonforciblestop and a common-law inquiry" (id. at 280 [emphasis added]). Because the officer inBest had not gone beyond those steps, it was unnecessary for us to determine whether thesame facts gave rise to reasonable suspicion, and we made no such determination, specificallynoting that, on the record in that case, the officer had "at least" a founded suspicion of criminalactivity. Also inapposite is People vMendez (68 AD3d 662 [2009], lv denied 14 NY3d 842 [2010]), in which wegranted suppression because the arresting officer, by his own account, "did not see anycharacteristics of an illegal type of knife" (id. at 662), and admitted that the only basis forsuspecting that the object in the defendant's pocket was a gravity knife was that "any foldingknife [which the object appeared to be] could, upon inspection, turn out to be a gravity knife"(id.). Here, by contrast, the arresting detective specifically testified that, based on histraining and experience, he believed the object in question to be an illegal weapon. While thedefense in Mendez evidently succeeded in eliciting admissions warranting suppressionfrom the police witness in that case, any such admissions were based on that particular witness'spersonal knowledge, training and experience, which may well have been less extensive than thatof the police witness here. The People are not bound in subsequent cases by the testimony givenby police witnesses in prior cases. In other words, each case is decided on its own record.
In reviewing the record of this particular case, we find no support for the dissent's theory thatthe only way to determine whether a partially obscured folding knife is most likely to be anillegal gravity knife is to hold and test the knife. In this case, the arresting detective testified that,based on his extensive experience and training, he could be substantially certain that the objecthe observed in defendant's pocket was an illegal weapon. Nothing in the record, in the statute, orin any prior holding of this Court, contradicts the import of that testimony. In this regard, to theextent the detective acknowledged that it is possible for a legal knife to be furnished with a clip,or that he could not be absolutely sure that the object was an illegal knife until he tested it, thisdoes not undermine his testimony that he was nonetheless substantially certain that the object indefendant's pocket was an illegal weapon. The standard for the detective's action was merelyreasonable suspicion, not absolute certainty or even probable cause. Given that defendant borethe burden of proof on the suppression motion, we cannot assume that, had defense counselpursued this line of questioning further, she would have succeeded in demonstrating that thedetective in fact could not articulate his basis for reasonably suspecting that the object (if a kniferather than a handgun) was an illegal knife (such as a gravity knife or switchblade) rather than alegal knife (such as a pocket knife). Accordingly, on the record in this case, the detective'sseizure of the knife was supported by reasonable suspicion of illegality.
Finally, we reject the dissent's view that the seizure of the knife was a level-four police [*4]intrusion under De Bour that required probable cause, notmere reasonable suspicion, for justification. As previously noted, the police action inquestion—grabbing a suspicious object protruding out of defendant's backpocket—did not involve any physical restraint of defendant's person, and was lessphysically intrusive to him (and a considerably lesser breach of his privacy) than a frisk wouldhave been. Hence, the seizure of the knife cannot be equated to an outright arrest. People vCobb (208 AD2d 453 [1994]) is not to the contrary; the police action in that case was afull-blown search of the defendant's pocket. In this case, the detective neither felt the outside ofdefendant's pocket nor placed a hand inside it; he simply removed the suspicious object that wassticking out. Concur—Mazzarelli, J.P., Friedman and Abdus-Salaam, JJ.
Catterson, J., dissents in a memorandum as follows: Because the Penal Law definition of agravity knife precludes any possibility of identifying such a knife by simply looking at it, muchless by viewing just the metal clip to which it is attached, I must respectfully dissent. Penal Law§ 265.00 (5) defines a gravity knife as any knife with "a blade which is released from thehandle . . . by the force of gravity [and] which, when released, is locked in place."Thus, it is beyond cavil that the only way to distinguish an illegal gravity knife from a legalfolding knife is by testing such a knife as to its dual-action operation. Neither training norexperience can provide a police officer with the ability to distinguish a gravity knife from aregular folding knife just by looking at it while it is partly concealed in someone's pocket. Indeed,in this case, the detective and arresting officer, Antonio Benero, Jr., acknowledged in testimonythat a curved metal clip like the one he saw on the outside of defendant's back pocket is alsoattached to legal pocket knives. Consequently, without more, the detective did not have probablecause for the level-four intrusion of a full-blown search and seizure, nor even reasonablesuspicion for a forcible stop. (See People v De Bour, 40 NY2d 210 [1976]; see alsoPeople v Cantor, 36 NY2d 106 [1975].)
The defendant was charged with criminal possession of a weapon in the fourth degree (PenalLaw § 265.02 [1]) and unlawful possession of a knife (Administrative Code of City of NY§ 10-133 [b]). He subsequently sought to suppress the evidence seized from him, as wellas any statements made to the police at the time of his arrest. On March 27 and 28, 2008, acombined Mapp/Dunaway hearing was held, at the conclusion of which thehearing court suppressed the knife seized, as well as the statements made by the defendant.
At the hearing, Detective Benero testified to the events leading up to the defendant's arrest.He stated that on March 11, 2007, he and his partner were assigned to the Bronx Gang Unit andwere on patrol in an unmarked police vehicle. He testified that, at approximately 11:30 p.m., they"slowed down for a pedestrian that intentionally slowed down as he walked in front of [the]vehicle . . . just basically, you know, trying to control the traffic."
His testimony on direct proceeded as follows:
"Q: [W]hen you saw the defendant cross in front of your vehicle what did you see[?]
"A: I drove passed [sic] him. I was looking basically at his right side of his body. AndI observed what appeared to be like a knife clipped to the rear jeans' pocket . . .
"Q: How did you know it was a knife . . . ?
"A: Based on my experience handling knives and after many arrests I just recognized it beingeither a knife, or it could have also been a small caliber weapon, also like handguns, too, theyhave those clips also. So—I pretty much was leaning towards the knife.
"Q: And what did you do at this point . . . ?
"A: I stopped the vehicle. I walked up behind him and asked him to stop and then I justgrabbed, went for the knife, and pulled it out of his pocket."
Subsequent testimony established that the defendant did not make any furtive movements orthreatening gestures toward either Detective Benero or his partner, nor did he reach for the knifeor conceal it. The defendant did not exhibit any suspicious or disturbing behavior, other thanwalking slowly in front of the unmarked patrol car. His hands were not in his pockets. He wasnot running. Nor was this a case where a defendant was reaching for an object believed to be aweapon when the detective "just grabbed" the knife out of his pocket. He had not brandished theknife, or taken it out of his pocket at any time, or "flicked" it to expose a blade.
The detective did not question or frisk the defendant before "grabbing" for the object in thedefendant's pocket. It was only once the knife was in his hands that he discovered that it could beopened by "flick[ing] it" with "a side move with [his] hand," confirming it was a gravity knife. Atthat point, the detective placed the defendant under arrest. The detective testified that he hadtaken the knife as a preventive act because he feared for his safety, as he could not ascertainwhether the object was a knife or a handgun.
In moving to suppress, the defendant argued that the detective had, at best, a basis to inquire,i.e., a level-two stop, in accordance with De Bour (40 NY2d at 223). The defendantcontends that the detective did not have reasonable suspicion to warrant a level-three seizure, orprobable cause for arrest and a full-blown search, because the metal clip he observed could havebeen attached to any number of innocuous objects.
The court agreed that, at most, the police had a level-two common-law right to inquirepursuant to De Bour. The court found that the detective grabbed the knife from thedefendant's pocket before he could determine with certainty that the object was, in fact, adangerous weapon, and thus that he did not have the requisite reasonable suspicion of criminalitywarranting third- or fourth-level stop and seizure. The court suggested that, even accepting thetestimony that the detective feared for his safety, he could have patted down or frisked thedefendant first, instead of reaching for his pocket and removing the knife. The court thereforegranted the defendant's motion to suppress both the knife and the statement.
On appeal, the People argue that the evidence presented at the hearing shows the detectivehad reasonable suspicion to stop the defendant. The People argue that it was sufficient [*5]that the detective saw the distinctive shape of the gravity knife inthe defendant's pocket, and that, based on his 18 years of experience as a police officer, he tookreasonable measures in preserving his safety.
In my opinion, the court properly granted the motion to suppress both the physical evidenceof the gravity knife and the statement made to the police. It is well established that, for a lawfulseizure, an officer must have a reasonable suspicion that an individual is committing a crime.(People v De Bour, 40 NY2d at 223.) In De Bour, the Court of Appealsestablished the standard for evaluating police-initiated encounters with citizens by dividing theseencounters into four levels of intrusion. The first, and least intrusive, level is described as arequest for information "when there is some objective credible reason for that interference notnecessarily indicative of criminality." (Id.) The second level, the "common-law right toinquire, is activated by a founded suspicion that criminal activity is afoot," and while permitting"a somewhat greater intrusion" to gain information, falls "short of a forcible seizure."(Id.) Only where a police officer has "reasonable" suspicion that a particular person hascommitted or is about to commit a crime is the officer authorized to make a level-three forciblestop and detention. (Id.) This level brings with the right "to temporarily detain forquestioning . . . the authority to frisk if the officer reasonably suspects that he is indanger of physical injury by virtue of the detainee being armed." (Id.) The fourth level ofintrusion is an arrest when there is probable cause to believe a person has committed a crime.(Id.)
As a threshold matter, and contrary to the majority's view that this was a level-threeencounter requiring reasonable suspicion, I would find that the police conduct in this case rose toa level-four encounter requiring probable cause. (See People v Cobb, 208 AD2d 453, 453[1994], citing People v Diaz, 81 NY2d 106, 109 [1993], and People v Soto, 194AD2d 371 [1993].) In Cobb, this Court determined, upon reviewing circumstancesvirtually identical to those in the instant case, that police officers who suspected a defendant wasselling credit cards and conducted "a search of defendant's pocket without any inquiry" hadessentially effected what "amounted to an arrest requiring probable cause." (Cobb at453.) Even were I to agree with the majority that the encounter was a level-three forcible stop, inmy view, the detective had no basis, that is, he had no reasonable suspicion, for making such astop. He testified that, based on his training and experience (including 50 to 100 arrests made forpossession of weapons such as gravity knives), he knew that gravity knives "often" had the sametype of metal clip as was showing at the top of the defendant's pocket; and that "the way the clipis designed and curved those are most, they are typical of clips that are, you know, basically partof knives." However, he was obliged to acknowledge that, "[u]ntil I pulled it out of the pocket[,]whether it was a gun or knife, I wasn't sure."
The detective's equivocation apparently does not concern the majority, possibly because, asthe majority holds, based on the sight of the metal clip "he believed the object in question to bean illegal weapon." However, his belief that it was either a small-caliber handgun or a knifecannot translate into a reasonable suspicion, nor even a founded suspicion, that the object was anillegal weapon. To find such a belief constitutes reasonable suspicion would be to ignore thesimple fact that the Penal Law does not criminalize the possession of all knives. (SeePenal Law § 265.01 [1]; see also People v Jose F., 60 AD2d 918, 919 [1978][defendant "was simply carrying (a) knife, and a knife is not a weapon per se"]; Matter ofRicci S., 34 NY2d 775, 776 [1974] ["An unmodified hunting knife with a five- to [*6]six-inch blade cannot be said to be a dangerous knife within themeaning of (section 265.05)"]; People v Irizarry, 17 Misc 3d 1118[A], 2007 NY Slip Op52051[U], *3 [2007] ["There are many legitimate reasons for a person to carry a small pocketknife and numerous citizens legally do so in the course of their occupations"].)
Indeed, the detective himself acknowledged that metal clips are often attached to legalknives, as the following demonstrates:
"Q: Detective, it is true that there are many objects that have metal clips; is that correct?
"A: That is correct . . .
"Q: There are tape measure clips that are also metal; yes?
"A: That is correct.
"Q: And there are actually also many legal pocket knives that have metal clips?
"A: Legal pocket knives?
"Q: Yes.
"A: That's correct."
Setting aside his apparent surprise that possession of some knives is not criminal per se, thedetective essentially acknowledged that the metal clip could equally well have been attached to alegal knife. Indeed, he then testified that he did not discover it was a gravity knife after grabbingit out of the defendant's pocket, but only after he actually opened it and tested it to ascertain thatit was an illegal gravity knife. "I basically took it out and flicked it and it opened up. I have a sidemove with my hand and I flicked it and it opened up."
More significantly, the detective could not point to any specific, articulable facts that wouldsupport a reasonable suspicion prior to seizure that the knife was an illegal gravity knife: There isno evidence in this record (or in any case involving gravity knives) that a gravity knife can beidentified by being a particular brand of knife or one of a number of brands of gravity knives soldin stores. Indeed, in no case before this Court has a police witness testified to identifying agravity knife based on any visible, identifying characteristics peculiar to gravity knives. Forexample, in People v Mendez (68AD3d 662 [1st Dept 2009]), we granted suppression and quashed the indictment because theobservation by a police officer of a knife in the defendant's possession did not support a findingof reasonable suspicion of criminality. The officer testified that he based his suspicion that theknife was a gravity knife on the fact that "any folding knife could, upon inspection, turn out to bea gravity knife." (Id. at 662.)
The majority, I believe, misses the point when it attempts to distinguish this result byfocusing on the police officer's testimony that he "did not see any characteristics of an illegal typeof knife" (id.) as if it was the police officer's failure of observation or his lack ofexperience [*7]that accounted for missing the definingcharacteristics of a gravity knife on sight. The relevant point that emerged from the truthfultestimony is that a gravity knife can only be recognized "upon inspection" and not through anydistinguishable identifying characteristics, even were the arresting officer endowed with theproverbial X-ray vision.
Abundant case law from criminal courts (which regularly deal with suppression motions likethe one at issue on this appeal) supports the view that because a police officer cannot ascertainwhether a knife is an illegal one just by looking at it or even holding it, there is no "quantum ofknowledge" that could give rise to reasonable suspicion, or even a founded suspicion, that whatappears to be a knife in a defendant's possession is in fact an illegal gravity knife. In other words,suppression courts have taken the view that there is no evidence that can be presented as tovisible differentiating characteristics that would support a reasonable belief or suspicion as to theillegality of the knife, and thus seizure cannot be warranted in those cases. (See People v Francis, 17 Misc 3d870 [Sup Ct, Bronx County 2007] [where officer observed only a portion of a knife clip,inquiry may have been warranted but not seizure]; People v Sosa, 20 Misc 3d 1140[A],2008 NY Slip Op 51805[U] [Nassau Dist Ct 2008] [observation of clip and outline of foldingknife did not justify search and seizure]; People v Irizarry, 17 Misc 3d 1118[A], 2007 NYSlip Op 52051[U], *3 [2007], supra ["no testimony elicited (as to) anything in the knife'sphysical appearance . . . to differentiate it from a legal pocket knife. . . Therefore, prior to . . . conducting the physical test on the knife,there was no evidence to support a reasonable belief the knife was a gravity knife"]; People vHigginson, 24 Misc 3d 1217[A], 2009 NY Slip Op 51478[U], *3 [Crim Ct, NY County2009] ["deponent determined that said knife was a gravity knife because deponent opened theknife with centrifugal force by flicking his wrist while holding the knife and the blade locked inthe open position"].)
In United States v Irizarry (509 F Supp 2d 198 [ED NY 2007]), the court concludedthat the officer who arrested the defendant for carrying a Home Depot utility knife that he usedfor his work did not have reasonable suspicion of criminal activity. The court observed that "[t]hewidespread and lawful presence of an item in society undercuts the reasonableness of an officer'sbelief that it represents contraband." (Irizarry at 209, citing United States vRomy, 1997 WL 1048901, *8 [ED NY 1997] [while recognizing cell phones as tools of drugtrade, court rejected argument that possession of cell phones established either probable cause orreasonable suspicion that defendant had engaged in criminal activity]; see also People vCantor, 36 NY2d 106 [1975], supra [officers made unlawful forcible stop afterviewing defendant from across street smoking a cigarette, which they believed containedmarijuana]; see also People vGrunwald, 29 AD3d 33 [2006].) In Grunwald, this Court affirmed a finding thatpolice officers seeing defendant with a hand-rolled, filterless cigarette, holding it like a "joint,"only had a first-level right to request information in their initial encounter and lacked thereasonable suspicion of criminal activity that would justify a forcible stop.
The People's, and the majority's, reliance on People v Carter (49 AD3d 377 [1st Dept 2008], lv denied10 NY3d 860 [2008]), People vSnovitch (56 AD3d 328 [1st Dept 2008], lv denied 11 NY3d 930 [2009]) and People v Fernandez (60 AD3d 549[1st Dept 2009]) is misplaced. These are two-paragraph decisions in three cases where [*8]gravity knives were recovered from defendants. The decisions arebereft of any factual or legal analysis, and thus, in my opinion, lack precedential value. Certainly,I would hesitate to cite any of the three cases as standing for the proposition that reasonablesuspicion in gravity knife cases may be based solely on the arresting officer's "experience," oreven "extensive experience." In Fernandez, the police officer did acknowledge that agravity knife cannot be determined as such without testing. Fernandez at 549 (testimonythat the top of a shiny metal knife attached with a clip to the defendant's pants pocket was "likelyto be a gravity knife, even if the knife's illegal status cannot be determined without testing it").There is no explanation of how the officer's experience led him to believe that the particular knifein question was "likely" to be a gravity knife. In Snovitch, this Court did not analyze thelawfulness of the initial stop but appeared to equate it with a request for information in afirst-level encounter pursuant to De Bour (40 NY2d at 223), finding that "the officermerely approached defendant, identified himself as a police officer, and told defendant that hewas stopping her because of the knife in her pocket." (Snovitch at 329.) The Court thendetermined that the officer was justified in removing the knife "after defendant's hand movedtoward the knife" and the officer became concerned for his safety. (Id.) In Carter,there is no information at all beyond the sentence that "the officer saw what appeared, based onhis experience, to be an illegal gravity knife clipped to defendant's clothing, and that he did notmerely see a clip." (49 AD3d at 377.)
It should be evident from the foregoing that a police officer's testimony as to identifying anillegal gravity knife from a distance based on his "training and experience" can be nothing morethan the "rote recital of the words deemed necessary to retroactively validate a patently impropersearch." (People v Howard, 147 AD2d 177, 182 [1st Dept 1989].) The foregoing phraseis borrowed from People v Howard, in which this Court applied it to unsupportedconclusory statements made by police officers at a hearing that they were afraid for their lives.They appear particularly appropriate applied to the many cases where police officers have offeredconclusory statements that their training and experience is a basis for recognizing otherwiseunidentifiable gravity knives.
In my opinion, the testimony of the detective in this case supports a finding that he acted onlyon an assumption when he seized the defendant and grabbed the item from his pocket: not onlydid he act on the assumption that the object was a knife, but he operated under the furtherassumption that such knife was an illegal gravity knife. An assumption is an impermissible basisfor any encounter above a level-one request for information. (See People v De Bour, 40NY2d at 223; People v Taveras, 155 AD2d 131, 135 [1st Dept 1990] ["a vague orunparticularized hunch" does not amount to a reasonable suspicion].) Since, in my opinion, theillegal gravity knife and statements were obtained as a result of an unlawful seizure, I wouldaffirm Supreme Court in suppression of both the knife and the defendant's statements. [PriorCase History: 19 Misc 3d 1140(A), 2008 NY Slip Op 51077(U).]
Footnote *: In dismissing our decisions inFernandez and Carter as "lack[ing in] precedential value," the dissent tacitlyadmits that the result it would reach is contrary to those cases.