Opinion
No. 2017NY022942.
08-31-2017
The PEOPLE of the State of New York, Plaintiff, v. Elijah DANIELS, Defendant.
Lamar R. Miller, Esq., The Legal Aid Society, New York, for the Defendant. Tanya Woods, A.D.A., New York County District Attorney's Office, New York, for the People.
Lamar R. Miller, Esq., The Legal Aid Society, New York, for the Defendant.
Tanya Woods, A.D.A., New York County District Attorney's Office, New York, for the People.
DAVID FREY, J.
The defendant was charged with one count of Criminal Possession of a Weapon in the Fourth Degree (PL 265.01[2] ). On May 15, 2017, the People consented to Huntley, Mapp, and Dunaway hearings. On July 10, 2017, the defendant moved to dismiss the complaint for facial insufficiency ( CPL 100.40 and 170.30 ). On August 7, 2017, the People filed a response opposing the defendant's motion.
BACKGROUND
The complaining witness, a police officer, in his sworn misdemeanor information stated,
On or about April 20, 2017 at about 6:30 P.M., across from 17 East 124 Street in the County and State of New York, the defendant possessed a dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, and any other dangerous and deadly instrument and weapon with intent to use the same unlawfully against another.
I observed a sharpened metal object with tape wrapped around the handle on the ground next to the defendant's feet. The defendant stated, in substance, to me "that's mine. I use it for protection."
The defendant claims that the People have fallen short in proving intent to use against another, citing People v. Dudley, 53 Misc.3d 679 (N.Y.C.Crim. Ct., N.Y. Co.2016).
The People claim that the complaint is facially sufficient, and defendant's statement that he only possessed the knife "for protection" is a trial issue, not a pleading issue.
The People are correct, and the defendant's motion is denied.
FACIAL SUFFICIENCY
Criminal Procedure Law (CPL) 100.40(1) states that an information is sufficient on its face when it substantially conforms with CPL 100.15 ; the allegations provide reasonable cause to believe that the defendant committed the offense charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, every element of the offenses charged and the defendant's commission thereof. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v. Casey, 95 N.Y.2d 354, 360 [2000] ). The standard for facial sufficiency and the People's burden of proof at trial are thus markedly different.
"Reasonable cause" is defined by CPL 70.10(2).
Criminal Possession of a Weapon in the Fourth Degree under Penal Law 265.01(2) requires the People to allege that on a date certain in New York County, the defendant (1) possessed a dangerous instrument, (2) did so knowingly, and (3) did so with intent to use it unlawfully against another person. The defendant here only attacks the third prong—intent to use unlawfully against another—and invites this Court to adopt the holding in People v. Dudley, supra. That invitation is respectfully declined.
Penal Law 265.15(4) sets out a presumption upon which the People are entitled to rely:
.... The possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.
The defendant stated, "that's mine. I use it for protection." There is no further explanation by the defendant, who possessed a shiv-a sharpened metal object with tape wrapped around the handle-what he meant by "protection." As defendant now claims, "protection" might mean "justification," which is a defense defined in Penal Law sections 35.00, 35.05, 35.10, 35.15, 35.20, 35.25, and 35.30. But, it also might mean that defendant intended to use it in circumstances that he might consider protection, but do not fall under the vary narrow circumstances carved out by these defenses. In other words, these are facts that might be in dispute if raised by the defendant at a trial.
In deciding a motion to dismiss for facial sufficiency, the court is not required to consider the multiple proof and strategy permutations that might take place in the future at trial. The court simply needs to read the complaint to determine if (1) the People have made out the elements of the crime, (2) the defense has notice sufficient to prepare a defense, and (3) the elements are adequately detailed to prevent a defendant from being tried twice for the same offense. Casey, supra. Here, the answers are (1) yes, (2) yes, and (3) yes. For pleading purposes the People are entitled to rely on any legal presumptions. Indeed, the Court of Appeals was very clear in People v. Pons, 68 N.Y.2d 264 (1986) that "[t]he [justification] defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful." (Pons at 267 [quoting People v. McManus, 67 N.Y.2d at 545–546 ] ) (emphasis in Pons). See also, People v. McCain, 50 Misc.3d 132(A) (App. Term 2d Dep't 2016) ("[D]efendant's admission that he intended to use the knife as a weapon by itself supports the charge. Defendant's untested claim that his anticipated use would be justified does not render the accusatory instrument defective, since the issue of whether he had intended to use the knife solely in self-defense is a trial issue, not a pleading one") (internal citations omitted). In sum, justification is a defense that can be raised at a trial, but does not serve to negate an element of the crime at the pleading stage.
For example, arguendo, one permutation might be that the hearing court suppresses the statement after the Huntley hearing, defendant's statement is not heard by the jury, the People present only a circumstantial case on the issue of intent, and no justification charge is requested by the defendant. Or, the statement is not suppressed, the defendant testifies at trial, and on cross-examination admits that to him "self-protection" means stabbing anyone who comes within a 100–yard radius of where he is standing, which does not fall under the justification defenses listed in PL Art. 35. Or, the fact-finder might believe that the defendant was lying, in order to avoid arrest and criminal prosecution.
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CONCLUSION
Defendant's motion to dismiss the accusatory instrument as facially insufficient is denied. Both parties should be prepared to try this case on September 13, 2017.