Opinion
No. 2014–738 K CR.
04-07-2017
The PEOPLE of the State of New York, Respondent, v. Victor MALDONADO, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Laura R. Johnson, J.), rendered February 27, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree.
ORDERED that the judgment of conviction is reversed, on the law, defendant's guilty plea is vacated, the count of the accusatory instrument charging defendant with criminal possession of a weapon in the fourth degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.
Defendant was charged in an accusatory instrument with criminal possession of a weapon in the fourth degree ( Penal Law § 265.01[2] ), selling or possessing air pistols and air rifles (Administrative Code of the City of New York § 10–131[b][1] ), menacing in the second degree ( Penal Law § 120.14 [1 ] ), menacing in the third degree ( Penal Law § 120.15 ), harassment in the second degree ( Penal Law § 240.26[1] ), and unlawful possession of marihuana ( Penal Law § 221.05 ). The accusatory instrument alleged that a witness had observed the handle of what appeared to be a black pistol in defendant's sweatshirt pocket and had further observed defendant drop the pistol to the floor and retrieve it. The accusatory instrument also alleged that a police officer had ultimately recovered an air pistol from defendant's sweatshirt pocket. Defendant pleaded guilty to criminal possession of a weapon in the fourth degree, in satisfaction of the entire accusatory instrument.
At the outset, we note that as defendant's facial sufficiency argument raises a jurisdictional issue, it is not forfeited upon his plea of guilty, and must be reviewed on appeal despite his failure to raise the issue in the Criminal Court (see People v. Kalin, 12 NY3d 225, 229 [2009] ; People v. Konieczny, 2 NY3d 569, 573 [2004] ; People v. Alejandro, 70 N.Y.2d 133 [1987] ). Since, as part of the plea agreement, defendant, through his counsel, expressly waived his right to be prosecuted by information, the accusatory instrument's legal sufficiency must be evaluated under the standards which govern that of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 524 [2014] ). A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15[3] ) and provides reasonable cause to believe that the defendant committed the crime charged (see CPL 100.40[4][b] ; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ).
Pursuant to Penal Law § 265.01(2), a person is guilty of criminal possession of a 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." Unlike Penal Law § 265.01(1), which makes possession of one of the weapons enumerated therein a crime per se (an air pistol is not one of the weapons enumerated under that subsection of the statute), under Penal Law § 265.01(2), the People must establish, in addition to possession, that the defendant had intended to use the weapon unlawfully against another person (see People v. Laramore, 1 Misc.3d 5 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] ). Pursuant to Penal Law § 15.05(1), "[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct." A defendant's intent to use a weapon unlawfully may be inferred from his actions and the surrounding circumstances (see People v. Bracey, 41 N.Y.2d 296, 301 [1977] ; People v. Dale, 115 AD3d 1002, 1005 [2014] ; Laramore, 1 Misc.3d at 6 ).
Here, there were no allegations contained in the accusatory instrument of any threatening or aggressive conduct exhibited by defendant or of any verbal threats made by him to others (cf. People v. Burkett, 101 AD3d 1468 [2012] ; People v. Jackson, 38 AD3d 1052 [2007] ). The instrument also did not describe defendant's proximity to the complaining witness or whether he had approached her or anyone else with the air pistol (cf. People v. Brown, 100 AD3d 1035 [2012] ; People v. Purvis, 90 AD3d 1339 [2011] ). Indeed, the actions described-of defendant concealing the air pistol in his sweatshirt pocket and then immediately retrieving it after it fell to the ground-would indicate that defendant did not intend to display the air pistol to the public or to make others aware that he had an air pistol, nor do they indicate that he intended to use the air pistol unlawfully (cf. Brown, 100 AD3d at 1037 ; Purvis, 90 AD3d at 1340 ; People v. Fisher, 52 AD3d 1120 [2008] ). Consequently, the accusatory instrument failed to sufficiently allege facts of an evidentiary character supporting or tending to support the count of criminal possession of a weapon in the fourth degree or to provide reasonable cause to believe that defendant had committed this crime. As a result, this count of the accusatory instrument is dismissed as facially insufficient (see People v. Leonardo, 89 A.D.2d 214 [1982] ), and the remainder of the accusatory instrument is reinstated to its pre-pleading status (see CPL 470 .55[2] ).
We reach no other issue.
Accordingly, the judgment of conviction is reversed, defendant's guilty plea is vacated, the count of the accusatory instrument charging defendant with criminal possession of a weapon in the fourth degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.