Opinion
No. 2015NY053682.
02-01-2016
The PEOPLE of the State of New York v. Keith JONES, Defendant.
Alexander Kahn, ADA, N.Y. County, for the People. Jenny Hurwitz, of counsel, The Legal Aid Society, for the defendant.
Alexander Kahn, ADA, N.Y. County, for the People.
Jenny Hurwitz, of counsel, The Legal Aid Society, for the defendant.
HEIDI C. CESARE, J.
The defendant, charged with criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ) and criminal possession of knives or dangerous instruments (AC 20–133[b] ), moves to dismiss the information for facial insufficiency (CPL 100.40 and 170.30 ). For the reasons stated below defendant's motion to dismiss for facial insufficiency is DENIED. Defendant's remaining motions are addressed below.
In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.
A. Procedural History
Defendant was arraigned on August 22, 2015 on a three count complaint charging him with one count each of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ), criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03 ), and criminal possession of knives or dangerous instruments (AC 20–133[b] ). At the arraignment, the court set bail and adjourned the case to August 27, 2015 for the People to serve and file a supporting deposition. On August 25, 2015, the court approved defendant's release on bond. On August 27, 2015, defendant failed to appear due to reported car trouble in Connecticut; the court granted defendant's application to stay a bench warrant; the People had no supporting deposition; and the court granted the People's application to dismiss count two, criminal possession of a controlled substance, upon a laboratory test result showing no controlled substance. The court adjourned the case to October 20, 2015 for the People to serve and file a supporting deposition. On October 20, 2015, the parties appeared before the court and the court granted the People's application to strike from the complaint all factual allegations based upon information provided by the civilian informant. With this amendment the court deemed the instrument an information. The court set a motion schedule and adjourned the case to December 9, 2015. On November 31, 2015, defendant served and filed his omnibus motion. On December 9, 2015, the parties appeared before the court and the People served and filed their response to defendant's omnibus motion along with a Voluntary Discovery Form. The People communicated an offer of disorderly conduct with time served. Defendant declined the plea bargain offer and the court adjourned the case to February 2, 2016 for decision on defendant's motions.
B. The Allegations
According to the deponent officer, on or about August 22, 2015 at about 2:55 a.m. in front of 848 Washington Street in New York County the following occurred:
“[Deponent officer] took a knife with an approximately eight-inch long blade ... from a flower pot near the scene ... The defendant stated in substance to [deponent officer] that another individual had thrown him the knife and told him to use it to defend himself.”
C. Criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2 ] ) is sufficiently plead.
Defendant contends that factual allegations in the information are insufficient to establish (1) that the defendant possessed a dangerous knife or (2) that he did so with intent to use the same unlawfully against another. The People contend that defendant's statement to the deponent officer that another person had thrown him the knife and told him to use it to defend himself establish that (1) defendant had dominion and control over the knife and (2) that he had the intent to use it unlawfully against another.
“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Smalls, 26 N.Y.3d 1064 [2015] [citations omitted], quoting People v. Case, 42 N.Y.2d 98, 99 [1977] ; see also, People v. Dreyden, 15 N.Y.3d 100, 103 [2010] ). To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint “need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” (People v. Dumay, 23 N.Y.3d 518, 522 [2014] ; see People v. Kalin, 12 N.Y.3d 225, 228 [2009] ; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ). Reasonable cause to believe that a person has committed an offense “exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10[2] ). An information, unlike a complaint, must also set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” (Kalin, 12 N.Y.3d at 228–229, 878 N.Y.S.2d 653, 906 N.E.2d 381, quoting, People v. Henderson, 92 N.Y.2d 677, 679 [1999] [citations omitted]; see also CPL 100.15[3] ; CPL 100.40[1][c] ; CPL 100.40[4][b] ). This is called the “prima facie case requirement” (People v. Jones, 9 N.Y.3d 259, 262 [2007] ).
“This additional showing is required because, unlike a felony complaint, a misdemeanor information ‘is not followed by a preliminary hearing and a Grand Jury proceeding’ and, consequently, there is no pretrial proceeding at which the People are required to present actual evidence demonstrating a prima facie case, as with an indictment following a felony complaint' ” (Kalin at 225, n. 1, 878 N.Y.S.2d 653, 906 N.E.2d 381, quoting, People v. Alejandro, 70 N.Y.2d 133, 138 [1987] ).
--------
A person is guilty of criminal possession of weapon in the fourth degree when, “[h]e possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another” (Penal Law § 265.01[2] ). The offense has two essential elements as charged in the present case: knowing possession of a dangerous knife; and possession with intent to use unlawfully against another. The term “dangerous knife” has no statutory definition (In re Antwaine T., 23 N.Y.3d 512, 516 [2014] ). The Court of Appeals, however, has held that the term, as used in the statute, connotes a knife which under “the circumstances of its possession ... may permit a finding that on the occasion of its possession it was essentially a weapon rather than a utensil” (Matter of Jamie D., 59 N.Y.2d 589, 593 [1983] ). By establishing possession of a “dangerous knife” the People are entitled to the statutory presumption that defendant intended to use the knife unlawfully against another (Penal Law § 265.15[4] ). The presumption alone is sufficient to establish reasonable cause to believe that defendant possessed the knife with intent to use unlawfully against another (People v. Leyva, 38 N.Y.2d 160, 169 [1975] ).
In order to assess the information for facial sufficiency the court must assume the allegations are true and draw reasonable inferences therefrom (People v. Jackson, 18 N.Y.3d 738, 741 [2012] ). Here, the factual allegations are that the deponent officer found a knife with an eight inch blade in a flower pot in front of 848 Washington Street. Defendant told the officer, in sum and substance, that someone else threw the knife to him, telling him to use it for self-defense. Defendant's admission to the officer gives reasonable cause to believe that defendant possessed the knife and put it in the flower pot. Since knives are not usually stored in street side flower pots, defendant's actions suggest that his intention was to either hide or abandon the knife. Defendant's actions coupled with defendant's statement that someone else told him to use the knife in self-defense, whether credited or not, permits an inference that defendant regarded the knife as a weapon and not a utensil. Since the allegations support a reasonable inference that defendant regarded this knife as a weapon, the knife is a “dangerous knife” according to the test established by the Court of Appeals in Matter of Jamie D. (59 N.Y.2d 589, 593 [1983] ). For these reasons, the court finds that the first element of the offense—knowing possession of a dangerous knife—is sufficiently plead.
Further, by establishing possession of a “dangerous knife” the People are entitled to the statutory presumption that defendant intended to use the knife unlawfully against another (Penal Law § 265.15[4] ). Notably, defendant's claim that someone else told him to use the knife in self-defense is not an assertion by the defendant that he intended to use the knife in self-defense, nor will it serve to negate the statutory presumption of intent to use unlawfully against another. For these reasons, the court finds that the second element of the offense-intent to use unlawfully against another—is sufficiently plead.
D. Criminal possession of knives or dangerous instruments (AC 20–133[b] ) is sufficiently plead.
Pursuant to A.C. § 10.133(b), it “shall be unlawful for any person to carry on his or her person or have in such person's possession, in any public place, street, or park any knife which has a blade length of four inches or more.” Defendant disputes the sufficiency of the factual allegations to show possession. Defendant's argument is without merit. Defendant's admission that, “another individual had thrown him the knife and told him to use it to defend himself” is sufficient to establish reasonable cause to believe that defendant possessed the knife. For these reasons the one count charging criminal possession of knives is facially sufficient.
E. Conclusion and Defendant's remaining motions.
Defendant's motion to dismiss the information for facial insufficiency is denied in its entirety.
Defendant's motion for a Huntley/Dunaway pretrial hearing is granted.
Defendant's motion to preclude evidence of unnoticed statement or identification testimony is granted pursuant to CPL 710.30(3).
Defendant's motion to compel a Bill of Particulars and discovery is denied.
Defendant's motion to preclude certain discovery is reserved to the trial part.
Defendant's motion for a Sandoval hearing is reserved to the trial part.
Defendant's motion for an extension of time to file additional motions is denied, subject to the provisions of CPL 255.20(3).
This constitutes the decision and order of the court.