Opinion
No. 2012–1294 W CR.
04-26-2016
The PEOPLE of the State of New York, Respondent, v. Tyrone R. ADAMS, Appellant.
Appeal from a judgment of the Justice Court of the Village of Sleepy Hollow, Westchester County (Andres J. Valdespino, J.), rendered March 26, 2012. 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, and the accusatory instrument is dismissed.
In a felony complaint, defendant was charged with criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ), in that, at approximately 9:40 p.m. on July 2, 2011, in a park on Palmer Avenue in the Village of Sleepy Hollow, Westchester County, “defendant did possess in the front right pocket of his jeans pants a switchblade style knife after being convicted of a class A' misdemeanor in the past.”
On February 2, 2012, defendant agreed to plead guilty to criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1] ), a class A misdemeanor, and to waive prosecution by information. Pursuant to a request by the prosecutor, the Justice Court, for the purpose of the plea, reduced the charge from criminal possession of a weapon in the third degree to criminal possession of a weapon in the fourth degree.
Defendant appealed from the judgment of conviction, and defendant's prior counsel filed an Anders brief (Anders v. California, 386 U.S. 738 [1967] ). This court held the appeal in abeyance upon a finding that the Anders brief was inadequate, and new counsel was assigned to prosecute the appeal (47 Misc.3d 139[A], 2015 N.Y. Slip Op 50589[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015] ).
Defendant now contends, among other things, that the accusatory instrument was jurisdictionally defective. We agree.
At the outset, defendant's facial sufficiency argument is jurisdictional, is not forfeited upon his plea of guilty, and must be reviewed on appeal despite his failure to raise the issue in the Justice 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] ). Moreover, defendant's claim was not waived by virtue of the fact that the charge in the accusatory instrument was reduced from a felony to a misdemeanor (see People v. Reyes, 42 Misc.3d 127 [A], 2013 N.Y. Slip Op 52145[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v. Murphy, 31 Misc.3d 141[A], 2011 N.Y. Slip Op 50827[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ).
The accusatory instrument was jurisdictionally defective, as it merely alleged that defendant possessed a “switchblade style knife.” A “switchblade knife” is a per se weapon (see Penal Law § 265.01[1] ), which is defined in Penal Law § 265.00(4) as “any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.” The accusatory instrument was required, but failed, to contain nonconclusory allegations explaining the basis of the officer's conclusion that the object observed was a switchblade knife (see People v. Sans, 26 NY3d 13, 17 [2015] ; People v. Dreyden, 15 NY3d 100, 103 [2010] ). Thus, the reasonable cause requirement of CPL 100.40(4)(b) was not satisfied in this case (see People v. Dreyden, 15 NY3d at 103–104 ).
In light of our determination, we need not reach defendant's remaining contention.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
IANNACCI, J.P., and TOLBERT, J., concur.