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The PEOPLE of the State of New York, Respondent, v. Lawrence MENDEZ, Defendant-Appellant.

Decided: December 29, 2009

MAZZARELLI, J.P., CATTERSON, MOSKOWITZ, RICHTER, MANZANET-DANIELS, JJ. Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Andrew I. Gerber of counsel), for respondent.

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.

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 [2009] [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.