The defendant, William Womack, is charged with assault, disorderly conduct, resisting arrest, menacing and harassment. The defendant moved in an omnibus motion for suppression of physical evidence, and after a hearing in front of a Judicial Hearing Officer (see CPL 255.20 [4]) suppression was denied. This court certified the Hearing Officer's findings, and defendant now moves to reargue the motion for suppression, claiming that the court misapprehended or overlooked matters of law (CPLR 2221 [d] [2]).

The testimony at the suppression hearing established that defendant had an encounter with the police while he was standing in proximity to a number of individuals on a busy sidewalk outside of a performance venue. At that time, defendant and the other individuals were asking passersby if they needed tickets, presumably to an event taking place that evening. A police officer approached them and told this group to disperse, due to the fact that they blocked the sidewalk and pedestrians had to walk around them. When told to move elsewhere, all of the other persons complied except defendant, who declined to do so. When instructed again to move, defendant did not do so and instead, "stepped up to" the police officer, stating "the bigger they are, the [*2]harder they fall," while at the same time clenching his fists at his sides. It was at this moment that the officer decided to issue a summons to the defendant, and in furtherance of this intention, the officer took hold of the defendant's arm and moved him toward the side of a building nearby. The encounter escalated at that point, inasmuch as the defendant began flailing his arms as though to disengage the officer's grasp, and then swung his closed fist at the police officer's upper body, without making contact. Another police officer became involved, whereupon defendant was physically subdued, handcuffed and searched on the scene, which search recovered $680 in United States currency and twenty-two tickets (presumably for upcoming events at local performance venues) from defendant's pants pocket.

Under CPLR 2221(d)(2), a motion for leave to re-argue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered in the prior motion."

Defendant seeks reconsideration of the motion to suppress physical evidence, arguing, in sum, that matters of fact and law were misapprehended or overlooked by the court, inasmuch as there was no probable cause to support the officer's belief that a crime was committed and that defendant was the person who committed such crime.

Defendant secondarily argues that suppression is required because the People failed to overcome the presumption that the warrantless search of defendant was unreasonable by failing to prove that the tickets recovered from defendant were not contained in envelopes, the presence of which would require a warrant in order for the search to be authorized.Defendant's motion to reargue is decided as follows.

The hearing record is not clear as to what particular offense the officer believed defendant had committed when the officer decided to issue a summons to defendant, but, based on the evidence presented and the offenses actually charged, it could only have been disorderly conduct or menacing ^[FN1]. Once defendant took a swing at the police officer, the officer decided to arrest defendant, instead of merely issuing a summons. The question then becomes whether or not the arresting officer had probable cause to believe the defendant had committed a crime at any point during the encounter with defendant.

Taking the alleged events sequentially, it is clear at the outset that the People failed to provide proof of probable cause to support a charge of disorderly conduct, although not for the reasons argued by defendant. Under PL 240.20(5), the subsection recited in the complaint, a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he obstructs vehicular or pedestrian traffic. The defendant relies on People v Jones (9 NY3d 259 [2007]) for the proposition that there is no probable cause to arrest a person who, by standing still on a sidewalk, creates a situation whereby other pedestrians must walk around such person. However, this reliance is somewhat misplaced, inasmuch as the People v Jones analysis and test would only apply here to an arrest sought for [*3]disorderly conduct. Here, however, the officer did not initiate an arrest due to an alleged violation of PL 240.20 (5), but rather, intended to issue a summons. In point of fact, the testimony adduced at the suppression hearing failed to establish that the police officer observed that defendant, standing alone after the other individuals had departed, was in any way engaging in the activity described in the statute, with the requisite intent, so as to give the officer probable cause to summons or arrest defendant for this offense.

Similarly, the People failed to offer proof of specific facts supporting the existence of probable cause to arrest defendant for menacing. The People's sole witness, the police officer, testified quite clearly that he neither felt "afraid" nor was he "scared that defendant was going to hurt [him]" when defendant clenched his fists and stated to him "the bigger they are, the harder they fall." A person is guilty of menacing under PL 120.15 when, by physical menace, he or she actually places another person in fear of death, imminent serious physical injury or physical injury, or when he or she merely attempts to do so. Thus, a plain reading of the statute would support a finding of probable cause on these facts, in that it appears that defendant at least attempted to place the police officer in fear. However, this court is constrained by appellate authority which has consistently required some proof of actual fear as a necessary element of the offense (see In re Orenzo H., 33 AD3d 492 [1st Dept 2006]; Yvette H. v Michael G., 270 AD2d 123 [1st Dept 2000]; In the Matter of Wanji W., 305 AD2d 690 [2d Dept 2003]; In the Matter of Michael H., 294 AD2d 364 [2d Dept 2002];In the Matter of Steven W., 294 AD2d 370 [2d Dept 2002]).

The officer's attempts to issue a summons to defendant for disorderly conduct and menacing were not supported by probable cause; therefore defendant's attempts to pull his arm away from the officer's grasp were not resistance to an authorized arrest (see PL 205.30 and PL 35.27; see also People v Jensen, 86 NY2d 248 [1985]; People v Peacock, 68 NY2d 675 [1986]; People v Parker, 33 NY2d 669 [1973]). Accordingly, this court finds that the People failed to offer proof of specific facts supporting probable cause for the charge of resisting arrest under PL 205.30, for any actions taken by defendant before he swung his fist at the police officer.

However, when defendant swung his fist at the officer, a line was crossed, and it was a line almost as clearly defined as the equator or the 38th parallel. When defendant swung his fist at the officer, he created probable cause for his subsequent arrest. Unlike the alleged offenses discussed thus far, the People did provide proof of specific facts supporting the existence of probable cause for the arrest of defendant for attempted assault. It is well settled that a person may not use physical force to resist an arrest, whether authorized or unauthorized (PL 35.27; see also People v Voliton, 83 NY2d 192 [1994]). Of course, this does not prohibit an individual from protecting him or her self from an unjustified beating by police (see People v Sanza, 37 Ad2d 632 [2d Dept 1971]), nor is it a complete bar to the right of an individual to use some necessary force where an arrest is unlawful (see People v Makysmenko, 105 Misc 2d 368 [1980]); nevertheless, the purpose of this section is to discourage street combat as a means of determining the validity of an arrest.

In this instance, there was no proof offered to show that the police officer used excessive force; rather, the proof presented by the People showed that the defendant [*4]attempted to strike the police officer with a closed fist when the officer had merely taken hold of defendant's arm and moved him toward the building line with the intention of issuing a summons. At the moment that defendant attempted to strike the officer with his fist, the officer had probable cause to believe defendant committed a crime, and the subsequent arrest of defendant was fully authorized. Had the defendant accepted his summons with a greater degree of equanimity than he displayed that night, this matter may have been resolved with a dismissal, but defendant chose another course.

Thus, the property recovered from the search of defendant was not the fruit of police illegality, because, while there was no probable cause relative to the earlier actions of defendant for which the officer sought to issue a summons, there certainly was probable cause for the arrest that resulted after defendant altered the course of the encounter by attempting to assault the officer. Accordingly, suppression of the physical evidence is not warranted on this basis.

Defendant's second argument concerns whether or not the People were able to prove that the search incident to defendant's arrest was proper. This argument rests, in part, on the inability of the officer to recall when testifying at the suppression hearing, whether or not said tickets were inside of envelopes when the tickets were recovered from defendant's pants pocket.(At the suppression hearing, the officer did not concede that the tickets may have been in envelopes, as defendant asserts in the motion to reargue; to the contrary, the record clearly indicates that the officer testified that he simply did not recall.)In light of this, the defendant, relying on People v Berrios, 28 NY2d 361 (1971), argues that the People failed to show that the tickets were not in a closed container, and therefore, by inference, they have not met their burden of going forward to show the legality of the police conduct in question.

Defendant's argument in unpersuasive, for two reasons. First, as a matter of law, the People do not have the affirmative burden of demonstrating that evidence recovered pursuant to a search incident to a lawful arrest was not inside of a container, let alone a closed one. If the presence of a container is established, whether or not the container itself was open or closed may be of some moment (see People v Gokey, 60 NY2d 309 [1983]; see also People v Rosado, 214 AD2d 375 [1st Dept 1995]); however, the defendant does not offer, nor is this court aware of, any authority requiring the prosecution to prove that evidence was not in a containerin order to meet their burden of establishing justification for the warrantless search.More generally, the prosecution is not required to rule out or disprove every possible fact that might weigh in favor of suppression in order to meet their burden of going forward. In making this argument, defendant seeks to extend the established precedent regarding searches of other types of containers such as suitcases (see People v DeSantis, 46 NY2d 82 [1978]), duffel bags (see People v Gokey, 60 NY2d 309 [1983]), handbags (see People v Johnson, 59 NY2d 1014 [1983]), and briefcases (see People v Smith, 59 NY2d 454 [1983])to a situation where there is no evidence of a container whatsoever. The fact that defense counsel's inquiry as to the existence of envelopes on cross-examination was met with the officer's lack of recollection does not prove that the tickets were inside of envelopes. To the contrary, when a defendant contends that a police officer has testified untruthfully at a suppression hearing, "the defendant must still refute the testimony of [*5]the police officer," (People v Berrios, 28 NY2d 361, 368 [1978]). Thus, this court need not reach the question, however intriguing and novel, as to whether or not an envelope would be considered a container for purposes of this type of analysis.

Second, upon a review of the record, it is clear that the search that produced the tickets was proper in all respects: it was conducted contemporaneously with the arrest (see People v Gokey, 60 NY2d 309 [1983]), at the same location as the arrest (see People v Wylie, 244 AD2d 247 [1st Dept 1997]) and was justified by the need for safety of the officers. An officer has inherent common-law authority to conduct a search for safety purposes in circumstances that reveal only the commission of a violation (see People v King, 102 AD2d 710 [1st Dept 1984]); it only stands to reason that such a search is permissible when a higher level of offense has occurred. Additionally, even though the officer did not affirmatively state why he searched the defendant after he had been subdued and arrested,^[FN2] it is reasonable to infer from the events leading up to defendant's arrest and the totality of the circumstances that the officer had both a proper basis to arrest defendant as well as a proper basis to search defendant for concealed weapons, to wit, the safety of the public and the arresting officer and the protection of evidence from destruction or concealment (see People v Gokey, 60 NY2d 309 at 311 [1983], citing People v Smith, 59 NY2d 454, 458 [1983), and People v Belton, 55 NY2d 49, 52-53 [1982]).

For the foregoing reasons, the court denies defendant's motions to reargue and to suppress the physical evidence recovered from defendant. However, in light of the court's findings in reaching this decision, counsel for either side may make any appropriate motions regarding the particular charges in the complaint.

This constitutes the decision and order of the Court.

Dated:February 22, 2008

New York, New York

_________________________

Hon. Marc J. Whiten, JCC