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People v. Velez

January 27, 2003


Appeal from the Circuit Court of Du Page County. No. 00-CM-1060 Honorable Jane Hird Mitton, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne


Following a stipulated bench trial, defendant, Ricky E. Velez, was found guilty of resisting a police officer (720 ILCS 5/31--1(a) (West 2000)) and unlawful use of weapons (UUW) (720 ILCS 5/24--1(a)(1) (West 2000)). The trial court imposed concurrent sentences of one year of conditional discharge for each conviction. The written sentencing order further stated, "restitution paid to SAO W/I 60 days of demand." On appeal, defendant raises only two issues: (1) whether his possession of a malfunctioning switchblade knife supports his UUW conviction and (2) whether the trial court's restitution order is enforceable. We affirm the convictions, but we reverse the portion of the sentence ordering defendant to pay restitution.


On February 24, 2000, the State filed a three-count complaint charging defendant with (1) crossing a roadway at any point other than within a marked crosswalk (625 ILCS 5/11--1003(a) (West 2000)); (2) resisting a police officer; and (3) "unlawful use of a weapon 'possession of a switchblade' " in that defendant "knowingly possessed a knife commonly referred to as a 'switchblade' which has a blade that opens automatically by hand pressure applied to a button."

Defendant filed a motion to quash the arrest and suppress evidence. At the hearing on the motion, Aurora police officer Shawn McCleary testified that, on February 22, 2000, he was patrolling a residential area when he noticed "two kids" walking in the area. At 4:58 p.m., McCleary was writing a ticket for an illegally parked car when "an unknown individual" approached and stated that he thought he had seen two men with an open can of beer. The person did not describe the two men or identify them by name, but he pointed in the direction where McCleary had previously noticed the two young men walking. McCleary had not noticed any open alcohol when he passed the two individuals before his discussion with the tipster.

Based on the tip, McCleary drove his squad car in search of the suspected offenders. Five to six minutes later, McCleary approached a park and encountered the two individuals he had seen before, one of whom was defendant. The officer did not see the individuals carry alcohol or throw anything as he approached, but he saw them cross the street without using a crosswalk. When McCleary asked to speak with them, the individuals initially walked away in opposite directions but returned to McCleary when he exited the squad car. McCleary told defendant and his companion that he was detaining them based on the tip. When the officer asked the two for identification, defendant produced a school identification card that showed no date of birth. McCleary saw a state identification card in defendant's wallet and asked him to remove it. Defendant initially protested but then produced the card, which indicated that he was 21 years old. The other individual stated that he was 14 years old and had no identification.

At McCleary's direction, defendant and the juvenile placed their hands on the squad car and submitted to a pat-down search, which disclosed nothing. McCleary then stated that he would issue them citations because he saw them cross the street at a point outside of a crosswalk. McCleary testified that he could not recall whether the street had marked crosswalks. McCleary told defendant that he was required to post bond by paying $75 or surrendering a valid driver's license. Defendant stated that he had neither and walked away.

McCleary attempted to arrest defendant, but he pulled away and refused to be handcuffed. McCleary performed a "leg sweep" to subdue defendant, and the officer's pants were ripped twice during the struggle. McCleary handcuffed defendant, and a second search disclosed a switchblade knife in a rear pocket of defendant's pants. The knife did not function properly, but defendant was "extremely belligerent and hostile" during the encounter. After the arrest, McCleary searched the area for evidence of alcohol consumption, but he found nothing. McCleary handcuffed the juvenile and transported both suspects to the police station.

The court denied defendant's motion to quash the arrest and suppress evidence, noting that an arrest need not be valid for a person to be criminally liable for resisting the arrest. The court admitted the knife as the fruit of the search incident to a lawful arrest for resisting a police officer. Defense counsel requested a stipulated bench trial and defendant signed a jury waiver form. The parties stipulated to McCleary's testimony and the relevant police reports, and the attorneys argued the case.

Defense counsel asserted that defendant did not violate the street-crossing statute because there was no evidence that he had failed to yield to any vehicle. Counsel did not address the charge of resisting a police officer, but she contended that defendant could not be guilty of UUW because McCleary admitted that the switchblade knife did not have "a blade that opens automatically when pressure is applied to a button."

The trial court found defendant not guilty of crossing a roadway outside of a crosswalk and conceded that defendant's knife was broken at the time of the arrest. Nevertheless, the court found defendant guilty of resisting a police officer and UUW. The court concluded that the statute prohibiting the possession of switchblade knives applies equally to functioning and malfunctioning knives.

The prosecutor argued that defendant should pay restitution to the City of Aurora for the damage to McCleary's pants. The court inquired whether the officer personally paid for the pants, and McCleary stated "I never submitted a bill to the city for that." In the sentencing order, the court wrote "restitution paid to SAO W/I 60 days of demand." The court never heard evidence of the value of the damaged pants or ...

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