PEOPLE, res, v. TROY SIMMONS, def-ap

4229. PEOPLE, res, v. TROY SIMMONS, def-ap — Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel) and Shriver & Jacobson LLP, New York (Alejandra 282 26 1vila of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for res — Appeal from judgment, Supreme Court, New York County (Edward J. McLaughlin, J. at suppression hearing; Neil E. Ross, J. at plea and sentencing), rendered May 20, 2015, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him to a term of 30 days, held in abeyance, and the matter remanded to Supreme Court for determination, based upon the evidence presented at the suppression hearing, of the issues raised at the hearing but not determined therein.

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4229. PEOPLE, res, v. TROY SIMMONS, def-ap — Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel) and Shriver & Jacobson LLP, New York (Alejandra 282 26 1vila of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for res — Appeal from judgment, Supreme Court, New York County (Edward J. McLaughlin, J. at suppression hearing; Neil E. Ross, J. at plea and sentencing), rendered May 20, 2015, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him to a term of 30 days, held in abeyance, and the matter remanded to Supreme Court for determination, based upon the evidence presented at the suppression hearing, of the issues raised at the hearing but not determined therein.

The court erred in denying defendant’s suppression motion on the ground that the officer recovered the gravity knife from defendant based on a “search incident to arrest.” Although the record supports a finding that the officer had probable cause to arrest defendant for assault based on reliable information from the assault victim, the People failed to meet their burden (see People v. Di Stefano, 38 NY2d 640, 652 [1976]) of demonstrating that the officer intended to arrest defendant for the assault at the time he recovered the knife (see People v. Reid, 24 NY3d 615, 620 [2014]; People v. Mangum, 125 AD3d 401 [1st Dept 2015]). The officer’s testimony, viewed as a whole, indicates that, when he noticed the knife upon approaching defendant and retrieved it from defendant’s pocket, the officer’s intent was to inquire about the assault in order to verify that defendant was indeed the man who had assaulted the victim. Further, it was not until after the officer had retrieved the knife and confirmed that it was a gravity knife that he asked about the assault.

PEOPLE, res, v. TROY SIMMONS, def-ap

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