Opinion
16529 4936/12
01-05-2016
The PEOPLE of the State of New York, Respondent, v. Herby CABRERA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Andrew J. Dalack of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Andrew J. Dalack of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Robert Mandelbaum, J. at suppression hearing; Laura A. Ward, J. at jury trial and sentencing), rendered December 4, 2013, convicting defendant of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to an aggregate term of 2 ½ to 5 years, unanimously affirmed.
The court properly denied defendant's suppression motion. The police saw defendant angrily yelling and cursing at a woman on the street, while aggressively waving bags at her with both hands. This conduct provided the police with a founded suspicion that defendant was engaged, or about to engage, in some type of criminality, consisting at least of disorderly conduct, with a potential for violence (see generally People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 1976 ). This justified the officer's common-law inquiry as to whether defendant had a weapon, or anything that would be of concern to the officer. Once defendant replied that he had a knife in his back pocket and tried to reach for it, the officer had a reasonable basis to fear for his safety, and his subsequent seizure of the knife from the location indicated by defendant was a reasonable protective measure (see People v. Terrance, 101 A.D.3d 624, 625, 957 N.Y.S.2d 316 1st Dept. 2012, lv. denied 20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926 2013 ). Defendant did not preserve his claim that the officer's initial direction to put down the bags was a seizure requiring reasonable suspicion, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see e.g. People v. Francois, 61 A.D.3d 524, 525, 877 N.Y.S.2d 54 1st Dept.2009, affd. 14 N.Y.3d 732, 896 N.Y.S.2d 300, 923 N.E.2d 583 2010 ).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 2007 ). The People proved the operability, within the meaning of the statute, of defendant's gravity knife. The officer described how he opened the knife, and demonstrated its operability in court (see People v. Birth, 49 A.D.3d 290, 853 N.Y.S.2d 317 1st Dept.2008, lv. denied 10 N.Y.3d 859, 860 N.Y.S.2d 486, 890 N.E.2d 249 2008 ). The fact that the officer needed to make several attempts before the knife opened did not undermine a finding of operability (see People v. Smith, 309 A.D.2d 608, 765 N.Y.S.2d 777 1st Dept.2003, lv. denied 1 N.Y.3d 580, 775 N.Y.S.2d 796, 807 N.E.2d 909 2003 ).
The court properly exercised its discretion in denying defendant's mistrial motion, made when the prosecutor made a remark during jury selection regarding defendant's absence from the courtroom. The court's curative actions were sufficient (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 1981 ), and in any event the prosecutor's comment was not particularly prejudicial, because it was similar to an instruction that the court had already given on the subject of defendant's absence from the trial.
The court properly exercised its discretion in precluding defendant's accident reconstruction expert from testifying about the laws of motion and different kinds of forces that operate on objects, offered to assist the jury in determining whether the officer's flicking of the wrist constituted the application of either gravity or centrifugal force. The proposed testimony was unnecessary and potentially confusing (see People v. Herbin, 86 A.D.3d 446, 447, 927 N.Y.S.2d 54 1st Dept.2011, lv. denied 17 N.Y.3d 859, 932 N.Y.S.2d 24, 956 N.E.2d 805 2011 ). The excluded testimony was similar to the testimony properly excluded in Herbin, and defendant's argument to the contrary is unavailing.
Defendant's challenge to the court's instruction on the knowledge element is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see People v. Parilla, 112 A.D.3d 517, 977 N.Y.S.2d 29 1st Dept.2012, lv. granted 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 2015 ).