Defendant appeals from the judgment of the Supreme Court, New York County (Arlene D. Goldberg, J.), rendered March 4, 2010, as amended March 18, 2010, convicting him, upon his plea of guilty, of criminal possession of a weapon in the third degree, and imposing sentence.
The opinion of the court was delivered by: Saxe, J.
Appellate Division, First Department
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.
Decided on January 3, 2013
John W. Sweeny, Jr., J.P. David B. Saxe Karla Moskowitz Dianne T. Renwick Sheila Abdus-Salaam, JJ.
Steven Banks, The Legal Aid Society, New York (Allen S. Axelrod of counsel), and Davis Polk & Wardwell LLP, New York (Marc J. Tobak, Antonio J. Perez- Marquez and Heidi E. Reiner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sean T. Masson and Richard Nahas of counsel), for respondent. SAXE, J.
This appeal addresses whether suppression should have been granted where the police stopped defendant's car for a traffic infraction, and, based on what the arresting officer heard and observed, defendant was asked to exit the car and was patted down; he was placed under arrest only after a knife was found in his pocket. Because the arresting officer candidly admitted that he had not intended to arrest the driver before discovering the knife, defendant contends that the officer lacked the requisite predicate for the search and that therefore we must suppress the knife and other fruits of the search that followed. We disagree.
The arresting officer's factual testimony, which the court properly found to be credible, established that the necessary predicate existed for each step taken by the officer. Because, like the hearing court, we find that at the time of the patdown the officer actually had probable cause to arrest defendant for driving while intoxicated, the search was permissible and the fruits of the resulting full search were admissible. While we rely on the factual testimony of the arresting officer, we are not bound by his subjective assessment at the time regarding the nature and extent of his authority to act.
Police Officer Jacob Merino testified that in the early morning of February 15, 2009, he and a partner were patrolling in an unmarked car when, at approximately 5:40 a.m., he observed defendant's car as it traveled west on 125th Street, crossing the double solid yellow lines into the oncoming traffic lane and swerving in and out of the lane without signaling. He continued to observe defendant's car for approximately 10 minutes before pulling it over after it made a right turn onto 12th Avenue without signaling.
After defendant pulled to the curb, officer Merino approached the driver's side of the car. He observed two plastic cups in the center console, and two passengers in the car, one in the front passenger seat, and one in the back seat. Defendant's eyes appeared to be watery, his clothing was disheveled, and Merino said that the car smelled of alcohol.
Merino asked defendant for his license and registration. While defendant was still in the car, Merino asked where he was coming from and where he was going, and defendant answered that he was driving his two passengers home. When Merino asked defendant whether he had been drinking, defendant answered that he had had a beer after getting off from work. When asked when that was, defendant said approximately 4:00 p.m., which reply seemed odd to Merino since that was approximately 13 hours earlier.
Merino then asked defendant to get out of the car. As defendant complied with this direction, Merino asked him whether he had any weapons on him, "anything that he could hurt himself with or me." After defendant denied having any weapons, Merino patted him down. He felt a hard object in defendant's pocket, reached into the pocket and pulled out a switchblade knife. Merino acknowledged that he placed defendant under arrest at that time only because he found the ...