PEOPLE v. LAZCANO (2009)

On appeal from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that County Court erred in refusing to suppress a knife seized from his jacket pocket during a pat-down search. We agree. Although “a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance” (People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 [internal quotation marks omitted]; see People v. Hernandez, 40 A.D.3d 777, 778, 836 N.Y.S.2d 219). Here, the People failed to meet that burden. They established that the police were justified in stopping defendant and conducting the pat-down search (see People v. McGiboney, 62 A.D.3d 812, 878 N.Y.S.2d 777; People v. Hethington, 258 A.D.2d 919, 687 N.Y.S.2d 836, lv denied 93 N.Y.2d 971, 695 N.Y.S.2d 57, 716 N.E.2d 1102), but they failed to establish that the officer who conducted the pat-down search was justified in reaching into defendant's pocket and seizing the knife. That officer did not testify at the suppression hearing, and the testimony of the officer who witnessed the pat-down search was insufficient to establish that the search of defendant's pocket was legal (see People v. Barreto, 161 A.D.2d 305, 307, 555 N.Y.S.2d 303, lv denied 76 N.Y.2d 852, 560 N.Y.S.2d 992, 561 N.E.2d 892; cf. Matter of Jose R., 88 N.Y.2d 863, 865, 644 N.Y.S.2d 489, 666 N.E.2d 1362; see generally People v. Diaz, 81 N.Y.2d 106, 109, 595 N.Y.S.2d 940, 612 N.E.2d 298). We nevertheless conclude that there is no reasonable possibility that the court's error in refusing to suppress the knife might have contributed to the conviction, and thus the error is harmless beyond a reasonable doubt (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Freeman, 46 A.D.3d 1375, 1377, 848 N.Y.S.2d 800, lv denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86).

The court also erred in permitting the People to present testimony on rebuttal that the court had refused to allow them to present on their direct case. Defendant did not “open the door” to that rebuttal testimony when he testified on direct examination by defense counsel, and the court erred in permitting the People to “range[ ] beyond the defendant's direct examination ‘in order to lay a foundation for the tainted evidence on rebuttal’ “ (People v. Rahming, 26 N.Y.2d 411, 418, 311 N.Y.S.2d 292, 259 N.E.2d 727, quoting People v. Miles, 23 N.Y.2d 527, 543, 297 N.Y.S.2d 913, 245 N.E.2d 688, cert denied 395 U.S. 948). We conclude, however, that the court's error in admitting the rebuttal testimony is harmless (see People v. Sulayao, 58 A.D.3d 769, 770-771, 871 N.Y.S.2d 727, lv denied 12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937; People v. Gant, 291 A.D.2d 912, 736 N.Y.S.2d 820, lv denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229; see generally Crimmins, 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Finally, contrary to defendant's contention, the court properly exercised its discretion in refusing to allow defense counsel to cross-examine the victim with respect to her alleged drug use (see People v. Foley, 257 A.D.2d 243, 254, 692 N.Y.S.2d 248, affd 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123, cert denied 531 U.S. 875, 121 S.Ct. 181, 148 L.Ed.2d 124; see generally People v. Freeland, 36 N.Y.2d 518, 525, 369 N.Y.S.2d 649, 330 N.E.2d 611).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: