| People v Terrance |
| 2012 NY Slip Op 09151 [101 AD3d 624] |
| December 27, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rosario Terrance, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J., at suppressionhearing; Thomas Farber, J., at jury trial and sentencing), rendered March 8, 2011, convictingdefendant of criminal possession of a weapon in the third degree, and sentencing him, as asecond felony offender, to a term of 2 to 4 years, unanimously affirmed.
The hearing court properly denied defendant's motion to suppress a gravity knife recoveredfrom his person. Under the facts presented, a police officer was permitted to remove a knife fromdefendant's person during a common-law inquiry, even though the officer had no reason tobelieve it was an illegal knife until after he acquired it.
It is undisputed that the officer was entitled to make a common-law inquiry based on hisobservations that defendant was carrying a type of bag associated with shoplifting and appearedto be casing a store. The officer also observed that defendant's back pocket contained an outlineof what appeared to be a knife. The officer asked defendant, among other things, whether he hada knife, to which defendant responded that he did, and began to reach for his back pocket. Theofficer told defendant to stop, and then retrieved the knife.
Defendant's conduct, viewed in its entirety, gave the officer a reasonable basis to fear for hissafety, even though the officer did not articulate any fear for his safety at the suppression hearing(see People v Batista, 88 NY2d 650, 654 [1996]). Accordingly, the officer's seizure of theknife from the location indicated by defendant was a reasonable protective measure (see People v Miranda, 19 NY3d912 [2012]; see also People vHensen, 21 AD3d 172 [1st Dept 2005], lv denied 5 NY3d 828 [2005]).Defendant's acknowledgment, in response to a lawful inquiry, that he was carrying a knife wasequivalent to the knife becoming "plainly visible" as in Miranda (19 NY3d at 914).
The verdict was supported by legally sufficient evidence and was not against the weight ofthe evidence (see People vDanielson, 9 NY3d 342, 348 [2007]). The court charged the jury that the People had theburden to prove, among other things, that defendant knew he possessed a gravity knife, which thecourt defined in accordance with Penal Law § 265.00 (5). The People are generally notrequired to prove such specific knowledge of the nature of the knife (see People vBerrier, 223 AD2d 456 [1st Dept 1996], lv denied 88 NY2d 876 [1996]). However,in this case [*2]the People had to meet the added burden imposedby the court's charge, to which they did not object (see People v Malagon, 50 NY2d 954,956 [1980]).
Any deficiency in the People's case with respect to the element of knowledge was cured bydefendant's trial testimony (see People v Kirkpatrick, 32 NY2d 17, 21 [1973], appealdismissed 414 US 948 [1973]). Defendant testified that he used the knife to cut linoleumtiles shortly before his arrest. This testimony permitted the jury to infer that he had opened theknife. In light of the officer's testimony that the knife was opened by using the force of gravityand automatically locked into place, the jury could have reasonably inferred that defendant knewthe knife had the characteristics of a gravity knife, as defined by Penal Law § 265.00 (5).Concur—Friedman, J.P., Renwick, DeGrasse and Román, JJ.