PEOPLE v. FERNANDEZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose FERNANDEZ, Defendant-Appellant.

Decided: March 24, 2009

SAXE, J.P., FRIEDMAN, SWEENY, RENWICK, FREEDMAN, JJ. Robert S. Dean, Center for Appellate Division, New York (Carol A. Zeldin of counsel) and Milbank, Tweed, Hadley & McCloy LLP, New York (William J. McNamara of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, J. at suppression hearing;  Gregory Carro, J. at plea and sentence), rendered February 27, 2008, convicting defendant 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 affirmed.

The court properly denied defendant's suppression motion.   We perceive no basis to overturn the hearing court's findings crediting the officer's testimony (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   The officer, who had extensive experience involving gravity knives, observed the top of a shiny metal knife sticking out of defendant's pants pocket, attached with a clip.   According to the officer's testimony, an object bearing this combination of characteristics is at least likely to be a gravity knife, even if the knife's illegal status cannot be determined without testing it.   Therefore, we conclude the officer had, at least, reasonable suspicion to believe that defendant possessed an illegal weapon (see People v. Snovitch, 56 A.D.3d 328, 868 N.Y.S.2d 21 [2008];  People v. Carter, 49 A.D.3d 377, 852 N.Y.S.2d 770 [2008], lv. denied 10 N.Y.3d 860, 860 N.Y.S.2d 487, 890 N.E.2d 250 [2008] ).   Being reasonably concerned for his safety, he properly secured the knife by removing it from defendant's pocket (see People v. Batista, 88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581 [1996];  People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645 [1980] ).   Patting down defendant's pocket would have served no useful purpose, since the knife was visible and a patdown would have revealed what the officer already knew.