People v. Lewis: Protective Frisks Stop at the Pat‑Down; Federal Harmless‑Error Standard Requires New Trial on Robbery‑Related Counts

Introduction

In People v. Lewis (2025 NY Slip Op 05823), the Appellate Division, Second Department, on reargument, recalled and vacated its prior 2022 decision and substantially modified a Queens County judgment following a nonjury trial. The court held that the police exceeded the lawful scope of a protective frisk by removing a wallet from the defendant’s pants pocket and then unconstitutionally compounded the violation by searching the wallet’s contents without a warrant. Because these were federal constitutional violations, the court applied the rigorous Chapman v California harmless-error standard and concluded there was a reasonable possibility the error contributed to the convictions on robbery-related counts. It therefore vacated those convictions and ordered a new trial, while affirming the convictions on flight-related counts that did not depend on identity as the robber.

The decision powerfully reaffirms two core principles: first, that a Terry/De Bour protective frisk must end once the officer ascertains no weapon is present and does not authorize reaching into pockets to retrieve non-threatening items; and second, that when a federal constitutional error occurs, New York courts must apply the Chapman “reasonable possibility” harmless-error standard, which is more exacting than New York’s nonconstitutional harmless-error test in People v Crimmins.

Summary of the Opinion

Procedural posture: On motion, the Second Department granted reargument, recalled and vacated its prior decision (208 AD3d 595), and issued a substituted decision and order.
Suppression ruling: The court granted that branch of the defendant’s omnibus motion to suppress the wallet taken from his pocket and its contents, finding both the seizure of the wallet during a frisk and the subsequent warrantless search unconstitutional.
Harmless error analysis: Applying the federal harmless-error standard (Chapman v California; Fahy v Connecticut; People v Crimmins), the court held the error was not harmless beyond a reasonable doubt as to the robbery-related counts because the wallet’s recovery and contents significantly strengthened the proof of identity and enabled a Galbo inference of guilt from recent exclusive possession of stolen property.
Disposition: The convictions and sentences for robbery in the second and third degree, multiple counts of grand larceny in the fourth degree, criminal possession of stolen property in the fourth and fifth degrees, and possession of burglar’s tools were vacated, and a new trial was ordered on those counts. The convictions on the “flight-related” counts (e.g., fleeing, resisting, traffic offenses) were affirmed because they did not depend on the illegally obtained wallet evidence.
Appellate constraints: Citing People v LaFontaine, the court declined to reach the People’s alternative grounds for upholding the search because the trial court did not rule on them and the People did not request a remittal.

Factual and Procedural Background

The People alleged that Shawn Lewis robbed a complainant on a street corner by indicating he had a weapon and taking the complainant’s wallet. Officers arrived moments later; the perpetrator fled on foot, then in a white Toyota Camry with Texas plates. After a vehicular and foot pursuit, another officer (Nelson) apprehended the defendant. While the defendant was handcuffed on the ground, an officer removed a wallet from his pants pocket and officers looked inside, finding cards bearing the complainant’s name. At trial, the complainant could not identify the robber, having seen only a masked figure. The prosecution relied heavily on circumstantial evidence, including the wallet and a Galbo inference from recent possession of stolen property, as well as ski masks found in the car (used to support possession of burglar’s tools).

The Supreme Court denied suppression, reasoning that officers had reasonable suspicion to detain and frisk for safety. After a bench trial, the court found identity proven beyond a reasonable doubt circumstantially and convicted on robbery-related and flight-related counts. On appeal, after reargument was granted, the Second Department ordered suppression of the wallet and its contents and vacated the robbery-related convictions, ordering a new trial limited to those counts.

Analysis

Precedents Cited and Their Influence

Terry v Ohio (392 US 1) and People v De Bour (40 NY2d 210), People v Cantor (36 NY2d 106): These authorities establish that officers may conduct a brief stop based on reasonable suspicion and perform a limited protective frisk for weapons if they reasonably suspect danger. The court accepted that standard was met for detention and potentially for a frisk here.
People v Torres (74 NY2d 224): Limits the scope of a protective frisk—officers “may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary” to ensure safety during the inquiry. This case anchors the principle that pat-downs are strictly for weapons, not evidence hunting.
People v Diaz (81 NY2d 106), People v Setzer (199 AD2d 548), People v Graham (134 AD3d 1047), People v Smith (187 AD3d 944), People v Peart (230 AD2d 922), People v Clark (213 AD2d 946, affd 86 NY2d 824): These decisions underscore that once an officer’s pat-down dispels the presence of a weapon, further intrusion (such as reaching into a pocket) is impermissible. Diaz, in particular, embodies New York’s “plain-feel” limitations: absent tactile indication of a weapon, the search must end.
People v Geddes-Kelly (163 AD3d 716): Reinforces that the contents of a wallet cannot be searched without a warrant unless an exception applies. The officers’ opening of the wallet here was a separate Fourth Amendment violation.
People v Brown (198 AD3d 803), People v Berrios (28 NY2d 361): Clarify burdens at a suppression hearing: the People must first establish the legality of police conduct; only then does the burden shift to the defendant. The People failed to meet their initial burden here, notably because the frisking officer (Nelson) did not testify at the hearing to any facts suggesting a weapon was felt.
Chapman v California (386 US 18), Fahy v Connecticut (375 US 85), People v Crimmins (36 NY2d 230): Provide the governing harmless-error standards. The court carefully contrasts federal constitutional harmless error (error is harmless only if no reasonable possibility it contributed to the verdict) with New York’s nonconstitutional standard (error is harmless if evidence is overwhelming and there is no significant probability the result would have been different).
People v Galbo (218 NY 283), People v Grayson (138 AD3d 1250): Explain the inference permitted from recent exclusive possession of stolen property. The People relied on a Galbo charge, demonstrating the centrality of the wallet to proving identity and participation in the robbery.
People v LaFontaine (92 NY2d 470); see also People v Austin (203 AD3d 732), People v Chazbani (144 AD3d 836): Emphasize that an appellate court may not affirm on a ground not decided below; absent a request, it will not hold the appeal and remit for alternative grounds. Here, the People neither obtained a trial-level ruling on alternative justifications nor requested remittal; the Appellate Division therefore declined to reach them.
People v Porto (16 NY3d 93), People v Milonovich (215 AD3d 764), People v Argueta (194 AD3d 857), People v Suitte (90 AD2d 80): Cited in disposing of other claims as meritless; they do not bear on the central holdings but indicate the court reviewed and rejected remaining appellate contentions.

Legal Reasoning

The court’s analysis proceeds in two stages: the scope of the frisk and the harmless-error consequence of admitting the wallet and its contents.

Scope of the frisk. The court accepted that officers had reasonable suspicion to stop and possibly frisk the suspect: they responded within a minute to a reported street robbery; the suspect fled upon police arrival; officers observed him depart in a distinctive white Toyota Camry with Texas plates and a broken rear window; and a separate team apprehended him shortly thereafter following a vehicle and foot pursuit. But the court emphasized that a protective frisk is for officer safety only and must be strictly limited to detecting weapons. Critical facts at the suppression hearing were missing:
- The frisking officer, Nelson, did not testify at the hearing.
- No officer testified to feeling an object resembling a weapon in the defendant’s pocket.
- There was no evidence the wallet (a soft, flat object) posed any threat.
Given those evidentiary gaps, the removal of the wallet from the pants pocket exceeded the permissible scope of a pat-down (Torres; Diaz). Once officers concluded no weapon was present, their authority to intrude further ended. The subsequent act of opening the wallet and inspecting its contents compounded the violation as an unjustified, warrantless search (Geddes-Kelly). Because the People failed to meet their initial burden to justify both the seizure and the search, suppression was required.
Harmless error. The improperly admitted wallet and contents went to identity—whether the defendant was the masked robber. The complainant never saw the perpetrator’s face and could not identify the defendant. Officer Catapano’s opportunities to view the perpetrator’s face were limited and equivocal. Although other circumstantial evidence was strong (flight in the distinctive car, chase, apprehension), the wallet’s presence in the defendant’s pocket powerfully corroborated identity and enabled a Galbo inference that recent exclusive possession of stolen property indicates participation in the robbery. Under Chapman and Fahy, a federal constitutional error is harmless only if there is no reasonable possibility that the erroneously admitted evidence contributed to the verdict. The court explicitly contrasted this with Crimmins’s state-law standard for nonconstitutional errors (no significant probability the result would have been different), underscoring the distinct thresholds (“reasonable possibility” vs. “significant probability”) and their differing inquiries (contribution to the verdict vs. effect on acquittal).
Applying Chapman, the court held it could not say beyond a reasonable doubt that admission of the wallet and its contents did not contribute to the robbery-related convictions. Even assuming the remaining evidence was strong—or even overwhelming—the separate federal standard still asked whether the illegal evidence might have contributed to the convictions. It might have, so the error was not harmless. By contrast, the flight-related counts did not depend on the wallet or on identity as the masked robber; those counts were affirmed.
Appellate limitations (LaFontaine). The People advanced alternative theories on appeal to salvage the search (not specified in the opinion), but the trial court had not ruled on them and the People did not request a remittal for consideration of those grounds. Under LaFontaine, the Appellate Division could not affirm on grounds not decided below and, absent a request, declined to hold the appeal in abeyance and remit. This left the suppression ruling dispositive as to the wallet evidence.

Impact and Practical Implications

People v. Lewis is likely to have immediate effects in several areas of New York criminal practice:

Police training and frisk protocol. The decision reiterates that a protective frisk is a pat-down for weapons, not a license to reach into pockets unless the officer can articulate a tactile impression consistent with a weapon. Officers should:
- Confine initial intrusions to an outer-clothing pat-down;
- Document, in real time and in reports, any tactile observations suggesting a weapon before entering pockets;
- Expect that courts will suppress non-weapon evidence extracted during a frisk absent clear testimony about an officer’s reasonable perception of danger.
Suppression hearings and the People’s burden. Prosecutors must present the frisking officer and build a record establishing the precise facts that justified both the frisk and any further intrusion. Reliance on other officers’ generalized statements about “officer safety,” without the frisking officer’s tactile observations, risks suppression under Diaz/Torres. Failure to do so can unravel otherwise strong cases.
Searches of wallets and small containers. Absent a valid exception (e.g., a properly supported search incident to a lawful arrest, a valid inventory search, or consent), opening a wallet and inspecting its contents remains presumptively unconstitutional. Lewis reinforces Geddes-Kelly’s warnings against warrantless rummaging through personal effects.
Harmless-error rigor in identity cases. Where identity is contested and a central piece of corroborating evidence is admitted in violation of the Fourth Amendment, Chapman’s “reasonable possibility” standard will often require reversal—even in bench trials and even where remaining evidence is substantial. Prosecutors should be cautious about claiming harmlessness when illegally obtained evidence relates to identity or enables potent inferences like the Galbo charge.
Use of the Galbo inference. The opinion highlights how the Galbo inference—from recent exclusive possession of stolen property—can be outcome-determinative. If the possession evidence is suppressed, the inference disappears. Trial courts and counsel should recognize how Galbo can magnify the prejudicial effect of illegally obtained possession evidence in harmless-error analysis.
Appellate strategy under LaFontaine. The court’s refusal to entertain alternative justifications without a trial-level ruling or a request to remit underscores a critical appellate practice point: the People must preserve alternative theories at the suppression hearing and, if necessary, ask the Appellate Division to remit for consideration of unaddressed grounds. Without that, key evidence may be permanently suppressed for retrial.
Case outcomes at retrial. Because the wallet and its contents are suppressed, the People must prove identity and intent on the robbery-related and burglar’s-tools counts without that evidence. The decision does not foreclose retrial; it resets the evidentiary landscape and removes the illegally obtained corroboration that previously tipped the scales.

Complex Concepts Simplified

Protective frisk (Terry/De Bour frisk): A brief pat-down of a detained person’s outer clothing for weapons when an officer reasonably suspects the person is armed and dangerous. It is about safety, not evidence-gathering.
Scope limit (“plain feel”): If the pat-down dispels the presence of a weapon, the frisk must stop. Officers cannot reach into pockets to retrieve non-threatening items without a lawful basis (e.g., palpable weapon, consent, or other recognized exception).
Warrantless search of a wallet: Opening a wallet and reading its contents is a search that generally requires a warrant or a valid exception. Simply possessing a wallet does not permit officers to examine its contents.
Harmless-error standards:
- Federal constitutional error (Chapman/Fahy): An error is harmless only if there is no reasonable possibility it contributed to the conviction.
- New York nonconstitutional error (Crimmins): An error is harmless if the evidence is overwhelming and there is no significant probability the factfinder would have acquitted absent the error.
These are different tests; the federal test is more demanding where constitutional rights are violated.
Galbo inference: If a defendant is in recent, exclusive possession of property stolen during a robbery or larceny, the factfinder may infer the defendant participated in the crime. It is a powerful prosecution tool but cannot be built on illegally obtained possession evidence.
LaFontaine rule: An appellate court cannot affirm on a legal ground not decided by the trial court. If the People want consideration of alternative justifications not addressed below, they must seek a remittal.
“Robbery-related” vs. “flight-related” counts: The former depend on identity as the robber (robbery, larceny, possession of stolen property, burglar’s tools); the latter concern conduct during flight and arrest (e.g., unlawful fleeing, resisting arrest, traffic offenses) and do not turn on identity as the masked robber.
Burden at suppression hearings: The People must first establish the legality of police conduct. Only after they do so does the burden shift to the defense to show illegality. Failure to present the key officer or key facts can be fatal to the People’s case for admission.

Conclusion

People v. Lewis delivers a clear and consequential message for New York criminal procedure. First, it reaffirms that a protective frisk is a narrowly tailored safety measure: unless an officer can articulate a tactile basis to believe a weapon is present, reaching into a suspect’s pocket is impermissible, and opening a wallet without a warrant is a separate constitutional violation. Second, where such Fourth Amendment violations occur, courts must apply the federal harmless-error standard, asking whether there is any reasonable possibility the error contributed to the verdict—an inquiry that is distinct from and more exacting than New York’s nonconstitutional harmless-error test.

Practically, the case underscores the importance of building a meticulous suppression record, including testimony from the frisking officer, and of preserving and litigating alternative grounds at the trial level or seeking remittal on appeal under LaFontaine. Substantively, it demonstrates that identity cases hinging on unlawfully obtained possession evidence will rarely survive Chapman review, especially where a Galbo inference amplifies the impact of the tainted proof.

By suppressing the wallet evidence and vacating the robbery-related convictions while affirming flight-related counts, the Second Department both vindicates core Fourth Amendment protections and carefully calibrates the remedy to the scope of the constitutional harm. Lewis will guide police practices, prosecutorial strategy, and harmless-error analysis in New York for years to come.