Opinion
No. 2015NY041316.
03-31-2017
The PEOPLE of the State of New York v. Saykou GEORGE, Defendant.
Courtney Razner, Assistant District Attorney, New York County District Attorney's Office, New York, for the People. Anthony Mayol, Forest Hills, for defendant.
Courtney Razner, Assistant District Attorney, New York County District Attorney's Office, New York, for the People.
Anthony Mayol, Forest Hills, for defendant.
ANN SCHERZER, J.
Defendant is charged with Assault in the Third Degree, in violation of Penal Law (PL) § 120.00(2) ; Obstructing Governmental Administration in the Second Degree, in violation of PL § 195.05; Resisting Arrest, in violation of PL § 205.30; Attempted Assault in the Third Degree, in violation of PL § 110/120.00(1), and Possession of a Knife, in violation of Administrative Code (AC) § 10.133(c). These charges are supported by allegations that the defendant possessed a folding knife in a public place; obstructed efforts by the police to detain him; resisted arrest and assaulted a police officer who was attempting to arrest him.
On January 14, 2016, defendant moved to suppress the knife recovered from his person and post-arrest statements he made to the police. On January 10, 2017, this Court held a Mapp, Huntley and Dunaway hearing to resolve the suppression motion.
At the hearing, the court heard testimony from Police Officer (PO) Jean Francisco and PO Melissa Veliz who testified for the People. The court reviewed two video recording of the incident (People's Exhibits 2 and 3), a still photograph of the defendant (People's Exhibit 1) and examined the knife recovered from the defendant (People's Exhibit 5). Upon consideration of the evidence and moving papers of the parties, the motion to suppress the knife and statement is granted.
The following constitutes the Court's findings of fact and conclusions of law.
FINDINGS OF FACTS
On July 1, 2015, Officers Francisco and Veliz were partnered together and assigned to anti-crime patrol in the confines of the 32nd Precinct. The officers were dressed in plain clothes; PO Francisco was driving them in unmarked police car. At approximately 1:15 p.m., the officers were driving westbound on 131st Street towards 8th Avenue. PO Francisco testified that from a distance of approximately four to five car-lengths away, he noticed the defendant walking southbound on Eighth Avenue and observed what he recognized to be a silver clip and the top of the knife protruding from the left pocket of defendant's pants. PO Francisco pointed to the defendant, asked PO Veliz if she saw the clip of a knife and then drove toward the defendant presumably to provide PO Veliz with a better view. As they got closer to the defendant, PO Veliz agreed with PO Francisco that the object protruding from the defendant's pocket appeared to be a knife.
Francisco stopped his car close to defendant; exiting their car, both officers continued to be certain that they observed a clip and a small portion of a knife sticking out of the defendant's pocket. Veliz testified that she also saw the outline of a knife through defendant's pants. The officers approached the defendant, identified themselves as police and without engaging in conversation with the defendant or asking him any questions, Veliz reached into his left pants pocket and pulled out a small folded pocket knife. The officers asked the defendant for identification but the defendant refused, asking why he was being stopped. Francisco explained that they needed identification in order to issue him a summons for the pocket knife. According to the officers, it took at least four requests times for his identification before defendant complied with their request for identification.
A photograph of the defendant, People's Exhibit 1, shows that he was wearing loose cargo pants.
The knife when folded, as it was when recovered from the defendant, is approximately two inches long. People's Exhibit 5.
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Once he had defendant's identification, Francisco planned to leave Veliz watching the defendant while returned to his car to conduct a warrant check. According to Francisco, he was concerned for Veliz's safety, and therefore decided to handcuff defendant before going to the car and told the defendant he was under arrest. Defendant became agitated, screaming: "You can't do this to me." According to Francisco, the defendant slapped Francisco's hand as he tried to handcuff him, then pushed Francisco down and punched him on the right side of his face. Meanwhile, Veliz went back to the car for backup. Francisco punched defendant; and they then squaring off, each punching the other. Veliz tried to place handcuffs on the defendant but could not because he is larger than her. Eventually, other officers arrived at the scene and arrested the defendant. By that time, a crowd of about seven to ten bystanders had gathered.
People's Exhibit 3, a surveillance video from a building near this incident shows the defendant walking down the street in an unremarkable manner. Francisco and Veliz are seen approaching the defendant and pushing him against the wall of a building. Shortly thereafter, the defendant starts to walk away from the officers and Francisco tries to push him back toward the place where he was originally stopped. The defendant continues to try to walk away from the officers, and Francisco continues to walk backward in the same direction as the defendant. Francisco is then seen punching the defendant and pushing him back toward the original scene. The defendant again unsuccessfully tries to walk away from Francisco. Francisco jumps after the defendant and swings at him, whereupon a scuffle between the two begins. The video shows defendant and Francisco punching each other until other officers arrive and restrain the defendant.
People's Exhibit 2, a video taken on a bystander's cell phone, provides a close image of the defendant handing his identification to the police, of the police taking out handcuffs, telling the defendant he is under arrest and of the defendant protesting his arrest. It continues to show defendant trying to walk away from the scene, and Francisco repeatedly pushing the defendant back to the location where he was originally stopped. Eventually, Francisco and the defendant are seen punching one another until the defendant is arrested.
Defendant was taken to the hospital to treat a bloody lip. Veliz rode with the defendant to the hospital and stayed with him there for over five hours. While at the hospital handcuffed to the bed, prior to Miranda warnings being administered, defendant spontaneously said to Veliz: "I didn't hit you because you are a woman."
CONCLUSIONS OF LAW
The issue here is simple; whether or not PO Veliz, based on her observations, training and experience, was justified in reaching into the defendant's pocket and removing a pocket knife. The Court concludes that she was not.
In order to stop and frisk an individual who is not under arrest, the police must have "reasonable suspicion" to believe that a person has committed, is about to commit or is in the process of committing a misdemeanor or a felony. See People v. Debour, 40 N.Y.2d 210, 233 (1976). Reasonable suspicion is "the quantum of knowledge" that would induce an "ordinarily prudent" person to believe that "criminal activity is at hand." People v. Cantor, 36 N.Y.2d 106, 112–113 (1957). On the other hand, neither innocuous behavior alone, nor "behavior that is susceptible of innocent as well as guilty interpretation" will trigger "reasonable suspicion that a crime is at hand." People v. Carrasquillo, 54 N.Y.2d 248, 252 (1981) ; People v. Barretto, 161 A.D.2d 305 (1st Dept.1990). Following DeBour and its progeny, a stop and frisk predicated upon reasonable suspicion has been commonly known as a "level three" encounter. Debour, at 223.
In People v. Brannon, 16 NY3d 596 (2011), the Court of Appeals specifically addressed the propriety of a level three encounter in circumstances remarkably similar to those involved here. Brannon reviewed two street encounters that resulted in the recovery of gravity knives following a stop and frisk. In the first, a plain-clothed officer noticed defendant Brannon engaged in "somewhat suspicious" behavior, then saw the hinged top of what he believed to be a pocket-knife in Brannon's back pocket. The officer stopped Brannon, saw the outline of a knife through the material of his pocket and questioned him. Brannon acknowledged that he had a knife in his pocket whereupon the officer reached into Brannon's pocket and recovered an object that turned out to be a gravity knife. Brannon, at 600.
In the second case examined by the Brannon court, defendant Fernandez was stopped by an officer who saw a knife clipped to his pants pocket and the head of the knife protruding from the pocket in plain view. Brannon, at 600. The arresting officer testified that based upon his extensive experience with gravity knives and his ability to differentiate between them and other knives, he believed that the knife clipped to Fernandez's pants pocket was a gravity knife. The officer approached Fernandez, removed a gravity knife from his pants pocket and then retrieved a second gravity knife from Fernandez's jacket pocket. Id. at 600–601.
Both Brannon and Fernandez were charged with violating PL § 265.01(1) which criminalizes the mere possession of a gravity knife as a per se weapon. Significantly, while the knives recovered from each of them turned out to be gravity knives as defined in PL § 265.00(5), the Court of Appeals viewed the searches leading to the recovery of the knives differently; suppressing the knife recovered from Brannon but not those recovered from Fernandez. Id. at 602. The critical difference in the court's analysis was the ability of the recovering officer to articulate a specific belief, prior to the search, that the object protruding from Fernandez's pocket was a gravity knife, a per se weapon. This provided that officer with reasonable suspicion to believe that Fernandez was engaging in criminal conduct, justifying a level three search. Id. at 602. In contrast, the officer who took the knife from Brannon "was unable to testify that he suspected or believed it to be a gravity knife but instead that it looked like a pocketknife." Id. Under those circumstances, the Court of Appeals found that a level three search was simply not justified.
Following the logic of People v. Brannon, supra, the First Department upheld suppression of a knife recovered during a level three encounter, when the recovering officer testified that prior to searching the defendant, he "thought it was a gravity knife" but did not provide a basis for that belief. People v. Vargas, 89 AD3d 582 (1st Dept.2011).
Having viewed the knife and its clip which looks nearly identical to the clip of a pen, this court frankly questions how PO Francisco could have possibly recognized it as a knife from a distance of four to five car lengths away. Assuming, though, creditability of their testimony, neither Francisco nor Veliz contended that they saw a gravity knife or other per se weapon; just that they saw the tip of a knife. The facts here are nearly identical to those that led the Court of Appeals to suppress a knife recovered from defendant Brannon. Brannon, supra, 16 NY3d at 596. The Brannon holding clearly controls here, and the knife recovered from the defendant must be suppressed.
The People claim that since the officers saw was a clip and tip of a knife visible from the defendant's pants pocket, they had reasonable suspicion to believe that he was in violation of AC § 10.133(c), and that this justified Veliz's act of reaching into his pocket and grabbing the knife. AC § 10.133(c), deems it an offense, rather than a crime, for "any person in a public place, street or park, to wear outside of his or her clothing or carry in open view any knife with an exposed or unexposed blade." Mere suspicion that a person is committing an offense, rather than a crime, does not justify the level three encounter that occurred here. This is precisely the principle that led to contradictory holdings in the two cases review by the Brannon court. At most, the facts here supported a level two stop, the common-law right to inquire predicated upon "a founded suspicion that criminality is afoot." People v. Debour, 40 N.Y.2d 210, 223 (1976). See, People v. Cutlip, 38 N.Y.S 3d 750 (Crim Ct New York County 2016) (probable cause to stop an individual for Possession of a Knife was not proper where the only the "clip and the top circular part of the knife were visible).
The court finds that defendant's conduct, walking down the street with a small clip visible on his pants pocket, did not generate a founded suspicion that criminality was afoot. Nor did the officer's belief that there was a small part of a non-specific knife protruding from the defendant's pocket provide the basis for a level three stop. The court further concludes that since the seizure of the knife was improper, the police did not have probable cause to arrest the defendant. His statement to the PO Veliz, at the hospital, while spontaneous, must be suppressed as a product of an unlawful arrest.
Accordingly, defendant's motion to suppress the knife and his statement is granted.
This opinion constitutes the decision and order of the Court.