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Case: People v. Whaley | Criminal Law | Best NYC Lawyer | NYC Law

by | May 23, 2017 | Cases | 0 comments

Cite as: The People v. Jerome Whaley, 2010KN062606, NYLJ 1202541704453, at *1 (Crim., KI, Decided January 20, 2012)

Judge Charles M. Troia

Decided: January 20, 2012


Charles J. Hynes, by Charlotte Owens Asst. District Attorney; Brooklyn NY

Stuart E. Meltzer; Atty. for Defendant; Brooklyn NY




An accusatory instrument was filed charging defendant with Criminal Possession of a Weapon in the Fourth Degree (Penal Law §265.01 [1]). The People allege that defendant possessed a gravity knife as defined by Penal Law §265.00 [5]. Defendant moved to suppress the knife; and a hearing was held before this court on October 20 and 26, 2011. On November 17, 2011, the People filed a memorandum of law opposing suppression. Defendant filed a memorandum in support of suppression on December 13, 2011.

At the hearing, the People called one witness, Police Officer Richard Hoda. Defendant called his fiancé, Maxine Maynard. Although the People attempted to call Officer Hoda’s partner as a rebuttal witness, this court sustained defendant’s objection to calling a witness who could have testified on the People’s direct case, and would merely bolster the People’s case rather than rebut the testimony of defendant’s witness.

The court accepts and credits the testimony of Officer Hoda (Hoda). The court does not credit the testimony of Maxine Maynard. The day after she testified, Ms. Maynard delivered a letter to the court in which she stated that her testimony of the circumstances surrounding the arrest was true, but admitted to misleading the court when she denied the lack of a criminal record. She explained that she lied because she did not want her fiancé to know about her prior criminal acts.1



Hoda testified that he trained in the police academy, has worked for the New York City Police Department for fours years, and has made three or four arrests involving weapons. On August 5, 2010, while in uniform on foot patrol in a high crime area, Officer Hoda walked with his partner toward two males. As the officers approached, one male dropped heroin down to the ground, and the officer observed defendant “in possession of what we later found out to be a knife.” Hoda grabbed defendant’s hand, asked defendant to open his hand, and seized the knife. The blade of the knife was never exposed while in defendant’s hand. Instead, the blade was folded into the knife, and was opened by Hoda after defendant was placed into handcuffs. When Hoda was asked if he was in fear of his personal safety when he saw someone holding a knife in his hand, he replied, “[n]ot at that time.” Defendant was arrested for possession of a gravity knife; and the other male was arrested for the possession of heroin.


When Hoda was asked at what point he determined that the knife was per se an illegal weapon, he replied, “[a]fter I stopped the defendant and seized the knife.” Inexplicably, the knife was never introduced into evidence. Nor was there any testimony as to the dimensions of the knife, or how it was determined that what the other male dropped to the ground was heroin. Although Hoda testified that based on his training and observation he believed the object in defendant’s hand was a knife, he did not explain how he knew that the knife was a gravity knife at the time it was in defendant’s hand.


A police officer may stop and question a person when he reasonably suspects that such person is committing, has committed, or is about to commit a felony or misdemeanor (CPL 140.50 [1]), or if the officer reasonably suspects that he is in danger of physical injury (CPL 140.50 [3]). However, a person may not be stopped and frisked solely because he is in the company of an individual the police reasonably suspect (People v. Terrell, 185 AD2d 906 [2d Dept 1992]). In the case of a self-protective search for weapons, an officer must be able to point to particular facts from which he can reasonably infer that the individual is armed and dangerous (People v. Arviello, 133 AD2d 589, 591 [1st Dept 1987], citing Sibron v. New York, 392 US 40,




In People v. Brannon (16 NY3d 596 [2011]), Police Officer Blake (Blake) testified that he observed defendant and another man evincing a desire to avoid walking near him. Blake observed the hinged top of a knife in defendant’s back pocket, and asked them twice to stop. When defendant approached, Blake saw the outline of what he described as a “typical pocket knife” through the material of defendant’s pocket. Blake frisked defendant and recovered what he then determined was a gravity knife.

In a companion case, People v. Fernandez (id.), Officer Hoffman (Hoffman) testified that he observed defendant walking on the sidewalk with a knife clipped to his front right pants pocket, with the top or “head” of the knife protruding in plain view. Without making any inquiry, Hoffman retrieved the knife. At the suppression hearing, Hoffman explained that he had previously examined about 200 gravity knives which were often carried in such a way to be readily accessible. Hoffman testified that he believed that the knife possessed by defendant was a gravity knife because, based on his experience, it was typically carried with a clip on the outside pocket, and with the “head” usually sticking up outside of the pocket (id. at 600-601).

In granting suppression in Brannon, but denying suppression in Fernandez, the Court of Appeals stated:

“We hold that the detaining officer must have reason to believe that the object observed is indeed a gravity knife, based on his or her experience and training and/or observable, identifiable characteristics of the knife. An individual may not be detained merely because he or she is seen in possession of an object that appears to be a similar, but legal object, such as a pocketknife” (id. at 599).

The case at hand is strikingly similar to Brannon. Officer Hoda was justified in approaching defendant and could have requested information (see People v. DeBour, 40 NY 2d 210 [1976]). Hoda could have even exercised his common-law right to inquire. But as in Fernandez, without cause for a self-protective search, Hoda did not act reasonably when he


detained defendant and seized an object that appeared to be a legal pocketknife, even with defendant standing near someone who dropped heroin (see People v. Terrell, 185 AD2d 906 [2d Dept 1992], supra).


Accordingly, defendant’s motion is granted, and it is hereby:

ORDERED, that the knife recovered by Officer Hoda is suppressed.

This opinion shall constitute the decision and order of the court.

1. Although Ms. Maynard was in court with appointed counsel on October 26, 2011, neither the assistant district attorney nor defense counsel chose to elicit additional testimony from her. Instead, counsel stipulated to the introduction of her letter into evidence.


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