Appeal from orders of the Criminal Court of the City of New York, Queens County (Toko Serita, J.), dated August 30, 2010 and February 7, 2011, respectively.
Appellate Term, Second 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 printed Miscellaneous Reports.
PRESENT: WESTON, J.P., ALIOTTA and SOLOMON, JJ
The order dated August 30, 2010 granted defendant's motion to suppress physical evidence. The order dated February 7, 2011, insofar as appealed from, upon granting the branch of the People's motion seeking leave to reargue their opposition to defendant's suppression motion, adhered to the prior determination.
ORDERED that the appeal from the order dated August 30, 2010 is dismissed, as that order was superseded by the order dated February 7, 2011; and it is further,
ORDERED that the order dated February 7, 2011, insofar as appealed from, is affirmed.
Defendant, who was charged with two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), one count of unlawful possession of marihuana (Penal Law § 221.05), and driving a motor vehicle with an inoperable stop lamp (Vehicle and Traffic Law § 375 ), moved to suppress the physical evidence recovered by the arresting officer as the fruits of an illegal search. At a Mapp hearing (see Mapp v Ohio, 367 US 643 ), Police Officer Demetrios Kekatos testified that he had been a police officer for a little over four years and had made approximately 130 arrests. On November 4, 2009, he was on duty, in plainclothes, with another officer, in an unmarked vehicle, when he observed defendant operating his vehicle with a defective driver's side brake light. After pulling over defendant's vehicle, the officers approached the vehicle and Kekatos asked defendant for his license, registration and insurance. Kekatos then asked defendant if there were any weapons in the vehicle, to which defendant responded that there were no weapons. However, when Kekatos looked further into the vehicle, to do a routine check, he observed a clip attached to defendant's left side pants pocket.
At the hearing, the following questions were asked by the assistant district attorney, and Kekatos gave the following answers: "Q.What did you do after seeing this clip?A.I asked the defendant to step out of the vehicle. I asked him to put his hands on the vehicle. I did a search, went for that pocket, pulled out a gravity knife. Then I did another search on his body, found another gravity knife on his right side.Q.Just to take a step back, what did you believe that clip was on the Defendant's left pants pocket?A.Gravity knife.Q.What made you believe that was a gravity knife?A.I believe it definitely was a knife, wasn't sure if it was a gravity knife or not. I recognized that knife on previous arrests. I arrested people with the same clip known to be a gravity knife or any other kind of knife.Q.You said that you also recovered - - what did you recover out of Defendant's right pants pocket?A.An additional gravity knife.
Q.After recovering the gravity knife, what did you do? A.I furthered my search. I also recovered a plastic case containing three Marijuana cigarettes in the Defendant's left pants pocket.Q.What did you do at that point?A.I placed the Defendant under arrest."
On cross-examination, Kekatos testified that he and his partner had not approached defendant's vehicle with their guns drawn and that defendant had been cooperative throughout the entire process. Kekatos testified that the clip was metal but that he could not recall how many inches it was. When asked to describe the clip, Kekatos responded "[j]ust a regular--something that looks like it clips onto your belt. There [are] not too many items that clip onto your belt." However, he clarified that it was not clipped onto defendant's belt, rather it was clipped onto his pants pocket.
After the hearing, Judicial Hearing Officer (J.H.O.) Cesar Quinones found Kekatos's testimony to be credible and recommended the denial of defendant's motion to suppress. On July 27, 2010, Judge Toko Serita issued an oral decision, adopting the J.H.O.'s findings of fact but rejecting the J.H.O.'s proposed conclusions of law and recommendation, and granted defendant's motion to suppress the physical evidence. Judge Serita indicated that his written decision would follow. On August 30, 2010, a written decision and order memorializing Judge Serita's oral decision was issued. The court held that Kekatos's observation of a clip attached to ...