In People v. Lazcano (4th Dept. 10/2/2009), the Fourth Department affirmed the defendant's conviction for Assault in the Second Degree. One of the issues was a search of the defendant in which a police officer, who did not testify at the suppression hearing, recovered a knife from the defendant's pocket. The People established, through a fellow officer, that there was reasonable suspicion to stop the defendant and frisk him for weapons. However, the testifying officer was unable to establish, to the court's satisfaction, that the searching officer was justified in reaching into the defendant's pocket. The testifying officer's observations were insufficient to establish what, if anything, the searching officer may have felt during the frisk.
Nevertheless, the court concluded that the error was harmless because "there is no reasonable possibility that the court's error in refusing to suppress the knife might have contributed to the conviction." We are not told much about the facts of the case---other than it was an assault prosecution---but I find it hard to believe that showing the jury a weapon recovered from the defendant would not have had some effect on the verdict. Perhaps the only issue was justification/self-defense? (LC)
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