NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 29, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
LAWRENCE MENDEZ, DEFENDANT-APPELLANT.
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 third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously reversed, on the law, the motion to suppress granted and the indictment dismissed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Catterson, Moskowitz, Richter, Manzanet-Daniels, JJ.
The arresting officer's observations warranted a common-law inquiry into whether defendant was carrying an illegal gravity knife, but they did not provide reasonable suspicion of criminality warranting a seizure. The officer testified that he saw a portion of a knife handle and a clip on defendant's pocket, leading him to believe that it was a folding knife. When the officer asked defendant "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 did not see any characteristics of an illegal type of knife, and testified, in essence, that the only reason he suspected the knife might be a gravity knife is that any folding knife could, upon inspection, turn out to be a gravity knife. While the officer could have lawfully asked to see the knife, he lacked reasonable suspicion justifying a seizure (compare People v Fernandez, 60 AD3d 549  [officer had reasonable suspicion where observed item was "at least likely to be a gravity knife"]). We have considered and rejected the People's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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