People v Irizarry

[*1] People v Irizarry 2007 NY Slip Op 52051(U) [17 Misc 3d 1118(A)] Decided on June 1, 2007 Supreme Court, New York County Cataldo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 1, 2007
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Julio Irizarry, Defendant.



5080/06



For defendant: Jeff Chebrowe, Esq.; For the People: Robert M. Morgenthau, District Attorney, New York (Claudine Caraccioli, of counsel)

John Cataldo, J.

On April 26, 27 and 30 of 2007, a Dunaway/Mapp/Huntley hearing was held before me. The People called two witnesses at the hearing, Police Officer Jose Taola and Sergeant Edwin Gutierrez. The defendant, Julio Irizarry, testified on his own behalf.

Findings of Fact

Based upon the credible evidence adduced at the hearing, I make the following findings of fact and conclusions of law:

Findings of Fact

On September 14, 2006, Sergeant Edwin Gutierrez (then Police Officer Gutierrez) was working with Police Officer Jose Taola and Police Officer Tudisco as part of the anti-crime unit in the 7th Precinct. The officers were in plainclothes patrolling in an unmarked taxicab. At approximately 11:16 p.m., Officers Gutierrez and Taola arrested the defendant, Julio Irizarry, in the vicinity of Ludlow and Stanton Streets, in New York County. Officer Tudisco was not present when the observations leading to defendant's arrest took place.

At approximately 11:13 p.m., Officers Gutierrez and Taola were standing on the corner of Ludlow and Stanton. Officer Taola saw the defendant riding his bicycle while carrying a long metal pole but didn't think anything of it and looked away. Shortly thereafter, the officers heard a loud bang and saw the defendant on the ground in the middle of Stanton Street, having fallen off his bicycle, approximately 25 feet from where the officers were standing. The aluminum pole, approximately six feet long, was also in the vicinity of the defendant. The defendant had fallen off his bike after hitting the driver's side door of a double parked car being driven by a woman. No identifying information was taken from the woman.

Officers Gutierrez and Taola approached the defendant. The defendant complained of pain in his side. Officer Gutierrez asked the defendant if he needed an ambulance and the [*2]defendant said no. The officers tried to pick the defendant up but the defendant was not yet able to stand up, and asked the officers to give him a moment. The officers remained kneeling by the defendant holding his arms. A few minutes later, Officers Gutierrez and Taola picked the defendant up and as they did so, a folding knife fell from defendant's left jacket pocket onto the ground, along with some nuts and bolts. Officer Gutierrez picked up the knife and immediately tested it to see if it was a gravity knife by flicking it open and seeing if it locked into place. Once Officer Gutierrez concluded from his physical testing of the pocket knife that it was a gravity knife, the defendant was handcuffed and placed under arrest.

The officers described the defendant as friendly and not aggressive. At no time did the officers ever indicate they feared for their safety. Officer Gutierrez indicated they made the arrest solely because after testing the knife, it was determined to be a gravity knife. A cigarette lighter which contained a switchblade was recovered in a search of the defendant's pant's pocket conducted after the defendant's arrest.

Prior to handcuffing the defendant, the officers asked the defendant about the pole and nuts and bolts. Officer Taola could not recall if they asked the defendant the questions about the pole before or after the knife fell out of defendant's pocket. The defendant told them he was going to use the pole for pull-ups. He told the officers he got the pole up the block, in the area of Second Avenue, and that someone had given it to him. (Tr. 80).[FN1] After defendant's arrest, he was transported to the 7th Precinct. On the way, he complained of pain in his side. He was taken to the hospital later that night.

Julio Irizarry testified to the events of September 14, 2006, leading up to his bicycle accident and regarding his arrest. I credit his testimony to the extent indicated herein:

On September 14, 2006, Mr. Irizarry was riding his bicycle on Second Street and the Bowery when he came upon a construction area from which he obtained a pipe and some nuts and bolts. On his way home, while carrying the pipe, he rode his bike through the intersection of Stanton and Ludlow Street when a woman in a double parked car opened her driver's side door, causing the defendant to fall off his bike and sustain injuries. When the officers asked the defendant where he had gotten the pole from, he told them a security guard had given it to him from a construction park on the Bowery and Second Street.

Conclusions of Law

At a Dunaway/Mapp hearing, the burden is on the People in the first instance to go forward with evidence to demonstrate the legality of the police conduct. People v. Dodt, [*3]61 NY2d 408, 415 (1984); People v. Berrios, 28 NY2d 361 (1971); People v. Malinsky, 15 NY2d 86 (1965).

In this case, Officer Taola saw the defendant riding his bicycle while carrying a six foot long pole, but thought nothing of it and looked away. Shortly thereafter, the defendant was involved in a traffic accident and lay injured on the street. The police officers acted appropriately in approaching to aid the defendant and investigate the accident. However, there was no indication of criminality. When the officers asked the defendant where he obtained the pole, he told him someone gave it to him at a construction site. While the officers might have thought this suspicious and had a hunch that it might have been stolen, they did not have information rising to the level of reasonable suspicion or probable cause to believe a crime had occurred. The People concede the defendant was not arrested for suspicion of a burglary, but solely because of his possession of the knife. (People's memorandum affirmation, p.7, ¶17). The defendant has standing to contest the seizure of items obtained from his person.

The issue presented is whether the police officers had the right to seize and perform a physical test on a small pocket knife which fell out a citizen's pocket while he was being helped to stand up after having been involved in a traffic accident.

A gravity knife, as defined by Penal Law §265.00(5) "means any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device." The operability of the knife in this fashion is an essential element of criminal possession of a weapon in the fourth degree. People v. Perez, 123 AD2d 889 (2d Dept 1986), appeal denied 69 NY2d 831 (1987).

The knife was produced at the hearing and was opened by both officers. Without being opened, there was nothing illegal in the pocket knife's outward appearance. It was a small, black folding knife. There were no allegations at the hearing that the officers thought it contained a blade of four inches or more, and it appeared to be less than four inches at the hearing. Furthermore, it had not been worn outside the defendant's clothing nor carried in open view. (Administrative Code §10-333). The knife had simply fallen out of a pocket as a result of the officers lifting the defendant from the ground. Contrary to the People's contentions, while the officers referred to the knife as a gravity knife at the hearing, there was no testimony elicited that there was anything in the knife's physical appearance when it fell from the defendant's pocket to differentiate it from a legal pocket knife. The knife had a button on the blade to allow for manual opening. There are many legitimate reasons for a person to carry a small pocket knife and numerous citizens legally do so in the course of their occupations. Therefore, prior to the officer conducting the physical test on the knife, there was no evidence to support a reasonable belief the knife was a gravity knife. The officers testified that the defendant was cooperative, friendly and not aggressive. Thus, they had no reason to fear for their safety and neither officer testified to any fear of the defendant.Therefore I find the police officers did not have [*4]the right to seize this pocket knife which has no outward indicia of illegality and, rather than return it to the defendant and let him proceed on his way as he wished to do, retain it in order to test it to see if it might be an illegal gravity knife when opened in a particular manner.

Accordingly, defendant's Dunaway/Mapp motion to suppress the gravity knife is granted. The switchblade knife is suppressed as the fruit of an unauthorized search conducted upon the defendant's person after the illegal arrest.

Defendant's statements, made pre-arrest in the course of the accident investigation, were legally obtained and defendant's Huntley motion is denied.

This constitutes the decision and order of the court.

DATED:June1, 2007

New York, New York

John CataldoActing Supreme Court Justice Footnotes

Footnote 1: Police Officers Gutierrez and Taola gave contradictory testimony as to defendant's statement regarding how he obtained the pole from the construction site. The People only gave statement notice regarding Police Officer Taola's version and not Police Officer Gutierrez's version. However, for purposes of the Dunaway/Mapp hearing, both versions are before me for my consideration. I credit the testimony of Officer Gutierrez in this regard. I base my finding on Officer Gutierrez's demeanor while giving this testimony and throughout his testimony on the stand. He was more composed, less hesitant, and more consistent and reliable in his recollection of the events. Additionally, Officer Gutierrez's testimony regarding defendant's statement as to how he obtained the pipe was consistent with the defendant's rendition of his conversation with the officers.