Opinion
No. 2016NY006932.
06-16-2016
The PEOPLE of the State of New York v. Robinson SOSA–LOPEZ, Defendant.
Donald Frazier, Esq., New York, for Defendant. Office of the New York County District Attorney, One Hogan Place, New York, Constantine Yelisavetskiy, Esq., of counsel, for The People of the State of New York.
Donald Frazier, Esq., New York, for Defendant.
Office of the New York County District Attorney, One Hogan Place, New York, Constantine Yelisavetskiy, Esq., of counsel, for The People of the State of New York.
LOUIS L. NOCK, J.
The information charges Defendant with a single count of Criminal Possession of a Weapon in the Fourth Degree—New York Penal Law § 265.01(1), a class A misdemeanor—premised on the allegation that he possessed a “gravity knife,” described in the information in part as a folding knife that was capable of being opened “using centrifugal force” (see, generally, PL 265.00 [5] [defining “Gravity knife”] ). Defendant's counsel moves to dismiss the information by challenging the constitutionality of PL 265.01(1), at least insofar as it criminalizes gravity knives, in the recent aftermath of the United States Supreme Court's opinion in Caetano v. Massachusetts (136 S Ct 1027, 194 L.Ed.2d 99 [Mar. 21, 2016] ).
Due to the specific charge in this case, and as evident throughout the discussion within the motion submission, defendant's counsel's constitutional challenge is substantially focused on the gravity knife prohibition found within PL 265.01(1). That said: counsel, at one point in his submission, seems to be challenging the entirety of that statute, arguing that Caetano would forbid “prohibiting possession of any defensive weapon” (Affirmation in support ¶ 11 [emphasis added] ).
Defendant's counsel correctly refers generally to New York Criminal Procedure Law § 170.30 as the procedural enabling statute for his motion to dismiss, but inaccurately particularizes the facial insufficiency ground that is the focus of CPL 170.35. Regardless of how counsel chooses to cast the grounds for his motion, or why he does so in the manner in which he did; the actual grounds for the motion, as substantively argued by him in his submission, are based expressly and exclusively on a constitutional challenge to PL 265.01; and not based on any argument that the allegations of the information do not make out a charge for PL 265.01 (i.e., facial insufficiency [CPL 100.40, 170.35 ] ). In other words, the motion before the court is not addressed to the quality of the pleading; but rather, to the constitutionality of the enacted offense, sufficiently pled as it is. Accordingly, the court views counsel's dismissal motion under the applicable ground of: the existence of a “legal impediment to conviction of the defendant for the offense charged” (CPL 170.30[1][f] ), i.e., asserted federal unconstitutionality of the state statute (PL 265.01[1] ), at least insofar as it criminalizes gravity knives.
See, supra, note 1.
But apart from counsel's mischaracterization of the particular ground for dismissal, which this court has noted and repaired with nominal travail, supra; counsel has failed to satisfy an essential prerequisite to substantive disposition of this motion, by not having served his motion on the Office of the Attorney General of the State of New York per the express mandate of New York Executive Law § 71. Per that mandate, no constitutional challenge to any New York state statute can be substantively considered by the court absent notice to the Office of the Attorney General of the State of New York, so as to enable that office to intervene in the matter (Executive Law § 71 ; see, People v. Jones, 122 AD3d 549, 549–50 [1st Dept 2014] [“there is no proof that defendant served the Attorney General with the requisite notice of his challenges to the constitutionality of the statute ....“], lv denied 25 NY3d 1166 [2015] ; Leslie's Jewelry Mfg. Corp. v. Tax Appeals Tribunal, 238 A.D.2d 129, 130 [1st Dept 1997] [“We do not consider petitioner's present constitutional challenge to the ... statute since ... there has been no notice to the Attorney General pursuant to Executive Law § 71.”] [citation omitted]; A & J Produce Corp. v. Commissioner of Fin., 199 A.D.2d 99 [1st Dept 1993] [same], lv denied 86 N.Y.2d 701 [1995] ; see also, People v. Brown, 64 AD3d 611 [2d Dept 2009], People v. Crespi, 51 AD3d 1036 [2d Dept 2008] ).
“The court ... shall not consider any challenge to the constitutionality of such statute ... unless proof of service of the notice ... is filed....” (Executive Law § 71[3].)
Executive Law § 71(1) contains a reference to New York's general intervention statute, section 1012 of the New York Civil Practice Law and Rules. While that statute contains language requiring the notice in cases where “the state is not a party” (CPLR 1012[b][1] ), it is clear from Executive Law § 71 that the legislative intent was not to automatically deem criminal cases as cases where the state is a party for purposes of the notice requirement, because Executive Law § 71(1) explicitly requires notice in “civil or criminal” cases. In order to harmonize that clause with CPLR 1012(b)(1), it must be interpreted to mean that (within the context of a constitutional challenge to a state statute): notice of constitutional challenge to the Office of the Attorney General of the State of New York is required in civil cases when the state is not a party; and such notice is required in all criminal cases in which said office is not already serving as the prosecutorial agent of the state (see also, e.g., People v. Jones, 122 AD3d 549 [1st Dept 2014] [requiring notice in a criminal case], lv denied 25 NY3d 1166 [2015] ).
In the absence of proof of notice to the Attorney General of defendant's counsel's constitutional challenge, this court is required to “make an order, directing the party desiring to raise such question, to serve notice thereof on the attorney-general, and providing that the attorney-general be permitted to appear at any ... hearing in support of the constitutionality of such statute.... When such order has been made ..., the attorney-general shall be permitted to appear in such ... proceeding in support of the constitutionality of such statute....” (Executive Law § 71[1].)
Based on the foregoing, it is hereby
ORDERED that defendant, though his counsel, shall serve a copy of defendant's instant motion upon the Office of the Attorney General of the State of New York within five business days from the date hereof, along with a copy of this decision and order; and it is further
ORDERED that defendant, through his counsel, shall file proof of the aforesaid service, with the court, within ten business days from the date hereof; and it is further
ORDERED that a conference is scheduled herein before the undersigned, for July 19, 2016, at 9:30 a.m., and that the Office of the Attorney General of the State New York shall appear at said conference to inform the court of its position in this matter; and it is further
ORDERED that defendant's motion is denied without prejudice to orally renew at the aforesaid conference.