This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 146
In the Matter of Jamal S., a
Person Alleged to be a Juvenile
Delinquent,
            Respondent.
--------------------------
Presentment Agency,
            Appellant.




          Tahirih M. Sadrieh, for appellant.
          Raymond E. Rogers, for respondent.




PIGOTT, J.:
           On August 13, 2012 at approximately 10:30 p.m.,
Officer Leo and his partner were on patrol when they observed
respondent Jamal S. and his companion riding their bicycles
against the flow of traffic on a one-way street.   The officers
stopped the two individuals.   Respondent told the officers that

                               - 1 -
                               - 2 -                          No. 146

he was 16 years old.   Initially, Officer Leo intended to issue
respondent a summons for disorderly conduct (Penal Law § 240.20
[7]), but because he was unable to produce identification, the
officers patted him down, placed him in handcuffs and transported
him to the precinct.   When he arrived at the precinct at
approximately 11:00 p.m., he was searched a second time.
           At approximately 11:20 p.m., respondent told the
officers that he was actually 15 years old.   The officers then
intended to call his parents, but respondent was unable to recall
their telephone numbers, and, although his cell phone contained
the numbers, it was not charged.   While the officers were
charging respondent's phone for him, Officer Leo asked Officer
Dooley to place respondent in the juvenile room.    Officer Dooley
patted respondent down and directed him to remove his belt,
shoelaces and shoes as standard police procedure for juveniles.
A revolver was recovered from one of the shoes.
           The presentment agency filed a juvenile delinquency
petition charging respondent with various weapon possession
counts.   Family Court denied respondent's motion to suppress,
holding that the police had probable cause to arrest him for
disorderly conduct based on the street encounter.   The court
further held that the seizure of the gun was not the result of an
illegal search, because the officers were justified in having
respondent remove his belt, shoelaces and shoes as part of police
protocol to ensure a detainee's safety.


                               - 2 -
                               - 3 -                          No. 146

           Respondent thereafter pleaded guilty to committing an
act that, had it been committed by an adult, constituted criminal
possession of a weapon in the second degree (Penal Law § 265.03
[3]).   He was adjudicated a juvenile delinquent and placed on 18
months' probation.
           A divided Appellate Division reversed, with the
majority holding that the search that uncovered the weapon from
respondent's shoe was unreasonable as a matter of law (123 AD3d
429, 429 [1st Dept 2014]).   As relevant here, the majority
rejected the presentment agency's argument that matters of safety
permitted the officers to require respondent to remove his shoes,
stating that safety provided "no justification in this case where
[respondent] was continuously in police custody and had been
searched twice before being directed to remove his shoes" (id. at
431).   It acknowledged that there are "appropriate cases" when
"officers are authorized to employ reasonable measures to guard
against detainees' self-infliction of harm," which "may include
the removal of belts and shoelaces," but the removal of the shoes
could not be considered a protective measure since officers had
previously searched him and had no basis to believe that
respondent possessed contraband or otherwise was dangerous (id.).
           The dissenters countered "that the limited search
undertaken when [respondent] was about to be placed in the
precinct's juvenile room, unguarded, was reasonable in scope and
manner of execution" (id. at 432).     They concluded that it was of


                               - 3 -
                               - 4 -                         No. 146

no moment that, at the time of the search, the officers "had no
reason to suspect that [respondent] had 'anything on him,' or
otherwise posed a danger," because respondent "was subject to the
actual supervision and control of police officers, who were
responsible for his safety until such time as he could be
released to his mother's custody" (id. at 435).
          The presentment agency appealed to this Court as of
right pursuant to CPLR 5601(a), and we now reverse.
          At issue here is whether the police had the authority
to arrest respondent and whether the subsequent search of his
shoes was reasonable.   Although "questions of the reasonableness
of [police] conduct can rarely be resolved as a matter of law
even when the facts are not in dispute" (People v Harrison, 57
NY2d 470, 478 [1982]), here, the majority and dissent did not
disagree on facts or inferences material to the narrow issues
before us.   Rather, the majority and dissent disagreed as to
whether the search of respondent's shoes was justified, as a
matter of law (compare 123 AD3d at 431 with id. at 434-435
[Andrias, J., dissenting]).   Therefore, the dual dissent was on a
question of law and we have jurisdiction over this appeal (see
Arthur Karger, Powers of the New York Court of Appeals §§ 6:4,
6:5, at 200-207 [3d ed rev 2005]).
          On the merits, we agree with Family Court that the
officers' initial arrest of respondent was lawful in light of
what they believed at the time (cf. Matter of Victor M., 9 NY3d


                               - 4 -
                                - 5 -                         No. 146

84, 87 [2007] [holding that a warrantless arrest of juvenile for
committing violations was improper where the juvenile was 15
years old at the time of the arrest and there was "no evidence in
the record that the officer believed or had reason to believe
that he was older"]).    Respondent initially told police on the
street that he was 16 years old.    Because he lacked
identification, the police transported him to the precinct,
where, nearly an hour later, he told them that he was only 15
years old.    Thereafter, the officers treated respondent as a
juvenile, placing him in a juvenile room and making him remove
his belt, shoelaces and shoes as a protective measure until his
parents were notified and he could be picked up from the
precinct.    Based on respondent's representation that he was 16
years old and the officers' observations of him in the street,
the officers had probable cause to arrest respondent for
disorderly conduct.
            We also conclude that the limited search of
respondent's shoes was reasonable.      The majority found no fault
with the request that respondent remove his belt and shoelaces as
a safety precaution; rather it was the request to remove his
shoes that the majority held to be "far more intrusive than a
frisk or patdown" (123 AD3d at 431 [citation omitted]).     However,
the officers were not first required to suspect that respondent
either possessed contraband or posed a danger to himself or
officers before being directed to remove his shoes.     In that


                                - 5 -
                              - 6 -                       No. 146

regard, the limited search of respondent's shoes while he was
temporarily detained and awaiting the notification of his parents
was a reasonable protective measure employed by police to ensure
both the safety of respondent and the officers, and the intrusion
was minimal (see generally Matter of Shamel C., 254 AD2d 87, 87
[1st Dept 1998]).1
          Accordingly, the order of the Appellate Division should
be reversed, without costs, and the dispositional order of Family
Court, Bronx County, reinstated.




     1
       The dissent interprets our holding by suggesting that it
"opens the door to intrusive searches of every juvenile who
enters a precinct, even in cases where a parent is willing and
able to pick up a child who is being held without legal
authority" (dissenting op at 5 n 2). Respondent was brought to
the precinct based upon the misrepresentation that he was 16
years old, and, when the officers decided to treat him as a
juvenile, they placed him in the juvenile room. Having
respondent remove his shoes as part of police protocol while he
was temporarily detained waiting for his parents to arrive was
simply not "intrusive," as the dissent claims.

                              - 6 -
Matter of Jamal S., A Person Alleged to be a Juvenile Delinquent
No. 146




RIVERA, J.(dissenting):
          The appeal should be dismissed for lack of jurisdiction
under CPLR 5601 (a) because the Appellate Division's two-justice
dissent was not on a question of law.    Accordingly, I would not
reach the merits.
          A party may take an appeal as of right from an order of
the Appellate Division pursuant to CPLR 5601 (a) "where there is
a dissent by at least two justices on a question of law in favor
of the party taking such appeal" (CPLR 5601 [a]; Matter of Robert
S., 76 NY2d 770 [1990]; see Arthur Karger, Powers of the New York
Court of Appeals §§ 6:4, 6:5, at 200-207 [3d ed rev 2005]).    No
appeal lies where the dual dissent is on a question of fact or a
mixed question of law and fact (see e.g. Matter of Daniel H., 15
NY3d 883, 884 [2010]). As the Court has explained, a mixed
question is presented where "facts are disputed, where
credibility is at issue or where reasonable minds may differ as
to the inference to be drawn from the established facts" (People
v McRay, 51 NY2d 594, 601 [1980]).    The Court has consistently
applied this limitation on jurisdiction to delinquency cases (see
e.g. Matter of Daniel H., 15 NY3d 883, 884 [2010]; Matter of
Jaquan M., 19 NY3d 1041 [2012]; Matter of Darryl C., 19 NY3d 1040

                              - 1 -
                               - 2 -                        No. 146

[2012]; Matter of Melissa O., 87 NY2d 916 [1996]).
           In determining whether jurisdiction is properly based
on CPLR 5601, this Court makes an independent assessment and is
not bound by any characterizations of the grounds for the dissent
contained in the Appellate Division opinion (Merrill by Merrill v
Albany Med. Ctr. Hosp., 71 NY2d 990, 991 [1988]).    Thus, the fact
that the Appellate Division majority described its decision as
being made "as a matter of law" is irrelevant to whether the
dissent was actually predicated on a mixed question of law and
fact (see People v Holland, 18 NY3d 840, 841 [2011]).   Instead,
we must look to the analytical disagreement in the dissent to
determine whether a question of law is presented (Feldsberg v
Nitschke, 49 NY2d 636, 640 n 1 [1980]).   "Where it is equivocal
whether a dissent rests upon a disagreement in fact or law, the
dissent is not on a question of law within the meaning of CPLR
5601 (a)" (Gillies Agency, Inc. v Filor, 32 NY2d 759, 760
[1973]).
           This is not a case where a question of law as to the
"minimum showing necessary" to establish a predicate for a search
or seizure is presented (People v McRay, 51 NY2d 594, 601
[1980]).   Instead, the parties focus on the reasonableness of the
police conduct.   It is by now well established that the
reasonableness of police conduct presents a mixed question of law
and fact generally beyond the review of this Court (see e.g.
People v Williams, 17 NY3d 834, 835 [2011]["The reasonableness of


                               - 2 -
                                - 3 -                          No. 146

a seizure, the existence of probable cause or reasonable
suspicion, the classification of a detention as an arrest and the
attenuation of evidence from police misconduct are all mixed
questions of law and fact that are beyond this Court's review
unless there is no record support for the determinations of the
court below"]).    A determination of what is reasonable in any
given situation requires a contextualized assessment of specific
facts.    While questions concerning the reasonableness of police
conduct frequently arise in criminal cases, this Court applies
the same standard in delinquency cases (see Matter of Daniel H.,
15 NY3d at 884).
            In this case the dissent and majority's conclusions do
not depend on the application of different legal standards.
Indeed, there is no dispute of law between the dissent and the
majority.    Rather, the disagreement that animates the dual
dissent is whether the search of this respondent was reasonable
"considering the totality of the circumstances," as the dissent
termed it (Matter of Jamal S., 123 AD3d 429, 433 [1st Dept
2014]).    The dissent's conclusions as to the reasonableness of
the search turn on the meaning attached to the facts and the
inferences to be drawn concerning the propriety of respondent's
arrest, transport to the precinct, continued detention, and
finally the search itself.    That is, the dissenters, "draw . . .
different inference[s] from the established facts [than the
majority did], thus deciding [only] mixed question[s] of law and


                                - 3 -
                               - 4 -                        No. 146

fact" (People v Brown, 25 NY3d 973, 976 [2015]).   Unlike the
Appellate Division majority, the dissent inferred that it was
reasonable for the police to doubt respondent was 15 years old,
given the facts that at the time of his arrest he told the police
he was 16 and then failed to present identification to support
his later claim that he was only 15.   Further, and contrary to
the majority's view that respondent's encounter with the police
"began with the detention of a juvenile who did nothing more than
ride a bicycle in the wrong direction on a roadway," the
dissenters found that respondent had committed disorderly
conduct, which merited an arrest in light of respondent's claim
to be 16.   Based upon the fact that respondent initially lied
about his age, the dissent inferred that his presence in the
precinct was "largely . . . a result of his own
misrepresentation" (Matter of Jamal S., 123 AD3d at 434).    The
dissent also had no quarrel with the intentional overnight delay
in releasing respondent to his mother prior to the search, yet
the majority found the record lacked an explanation for such
delay when respondent's mother told the arresting officer at 11
p.m. that she would pick him up, and the officer told her to
instead "come in the morning."1


     1
       Although the Appellate Division dissent and majority
largely agree upon the facts, my colleagues are incorrect that
the majority and dissent were in complete agreement about the
facts material to whether the search was reasonable based on the
"totality of the circumstances" (maj op at 5). The dissent's
timeline, for example, has the officers placing respondent in the

                               - 4 -
                              - 5 -                          No. 146

          These are just some of the facts and inferences that
informed the dissent's view of the lawfulness of respondent's
detention in the juvenile room and the reasonableness of a third
search of a previously searched teenager.    As with a typical
mixed question of law and fact, "reasonable minds may differ as
to the inference to be drawn" from the record (People v Harrison,
57 NY2d 470, 477, citing McRay, 51 NY2d at 601), but for purposes
of determining whether an appeal as of right lies under CPLR 5601
(a), there is no legal issue upon which the Appellate Division
dissent and majority disagree.2
          The dissent's conclusion that the police conduct was
reasonable "considering the totality of the circumstances"
presents a mixed question of law and fact, and is therefore
beyond the scope of our power to review.    I dissent.




juvenile room and conducting the search while his phone is still
charging, before speaking to respondent's mother (Matter of Jamal
S., 123 AD3d at 432-433). The majority concludes that the police
spoke to respondent's mother at 11 p.m., prior to the search, and
inexplicably told her to pick him up the next day (id. at
429-430).

     2
       In any event, the majority's conclusion that searching a
juvenile's shoes is reasonable as a matter of law opens the door
to intrusive searches of every juvenile who enters a precinct,
even in cases where a parent is willing and able to pick up a
child who is being held without legal authority.

                              - 5 -
                                - 6 -                           No. 146

*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed, without costs, and dispositional order of Family
Court, Bronx County, reinstated. Opinion by Judge Pigott.
Judges Abdus-Salaam, Fahey and Garcia concur. Judge Rivera
dissents and votes to dismiss the appeal, in an opinion in which
Chief Judge DiFiore and Judge Stein concur.

Decided October 27, 2016




                                - 6 -
