This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 76
The People &c.,
            Respondent,
        v.
Richard Gonzalez,
            Appellant.




          Robert S. Dean, for appellant.
          Malancha Chanda, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be reversed,
defendant's motion to suppress granted, and the indictment
dismissed.
          Defendant shouted obscenities at police officers in a
subway station in Manhattan, provoking looks of surprise and

                              - 1 -
                               - 2 -                           No. 76

curiosity from some passengers and evasive movements from others.
The officers followed defendant to another level of the station,
where a police sergeant prevented him from leaving.   The sergeant
observed an illegal knife on defendant's person and arrested him.
           Defendant moved to suppress the knife on the ground
that the police stop had been illegal.   Supreme Court denied the
motion.   Following a jury trial, defendant was convicted of one
count of criminal possession of a weapon in the third degree
(Penal Law § 265.02 [1]).
           On appeal, the parties do not dispute the facts
underlying the suppression issue in this case, as described in
police testimony credited by the motion court.   The parties
further agree that if the police had probable cause to arrest
defendant for disorderly conduct (see Penal Law § 240.20 [3]),
the detention would have been justified.   Probable cause
determinations typically involve mixed questions of law and fact
(see People v Oden, 36 NY2d 382, 384 [1975]) and therefore are
beyond this Court's review power if supported by evidence in the
record.   Here, however, there is no record support for the motion
court's determination that defendant's rant against the police
officers constituted the crime of disorderly conduct.   " '[A]
person may be guilty of disorderly conduct only when the
situation extends beyond the exchange between the individual
disputants to a point where it becomes a potential or immediate
public problem' " (People v Baker, 20 NY3d 354, 359-360 [2013]),


                               - 2 -
                                  - 3 -                           No. 76

quoting People v Weaver, 16 NY3d 123, 128 [2011]).
            The People's remaining contention on the suppression
issue is without merit.    Defendant's motion to suppress should
have been granted.    We have no occasion to address defendant's
argument with respect to the mens rea of criminal possession of a
weapon (see Penal Law § 265.01 [1]).
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order reversed, defendant's motion to suppress granted and
indictment dismissed, in a memorandum. Chief Judge Lippman and
Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey
concur.

Decided June 25, 2015




                                  - 3 -
