Opinion
2013-1031 K CR
01-08-2016
The People of the State of New York, Respondent, v. Darren Deveaux, Appellant.
PRESENT: :
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael J. Yavinsky, J.), rendered March 22, 2013. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.
ORDERED that the judgment of conviction is affirmed.
Defendant pleaded guilty to disorderly conduct (see Penal Law § 240.20) after he was charged with criminal possession of a weapon in the fourth degree for allegedly possessing a gravity knife (see Penal Law §§ 265.00 [5]; 265.01 [1]). The sole issue on this appeal is whether the factual part of the accusatory instrument was facially sufficient.
The factual part of the accusatory instrument alleged, in pertinent part, that the deponent, New York City Police Officer Craig Victorino, had been informed by New York City Police Officer Lawrence M. Perrotta that a "gravity knife was recovered from defendants [sic] pants. Deponent further states that deponent opened said knife and said knife locked into place through centrifugal force."
Defendant's facial sufficiency claim is jurisdictional, is not forfeited upon his plea of guilty, and must be reviewed on appeal even though it was not raised in the Criminal Court (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569 [2004]; People v Alejandro, 70 NY2d 133 [1987]; People v Shuff, 42 Misc 3d 141[A], 2014 NY Slip Op 50217[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). In the case at bar, defendant, through his counsel, waived his right to be prosecuted by information. Thus, the accusatory instrument must be evaluated under the standard for legal sufficiency for misdemeanor complaints—the reasonable cause standard—which requires allegations of facts of an evidentiary character supporting or tending to support the charge, and providing reasonable cause to believe that the defendant committed the charged offense (see CPL 100.15 [3]; 100.40 [4] [b]; People v Sans, ___ NY3d ___, ___, 2015 NY Slip Op 07529, *2 [2015]; People v Dumay, 23 NY3d 518 [2014]; People v Dreyden, 15 NY3d at 102-103; People v Dumas, 68 NY2d 729, 731 [1986]; People v Connor, 63 NY2d 11 [1984]; cf. People v Kalin, 12 NY3d 225, 228 [2009]).
"[A]n accusatory instrument must be given a reasonable, not overly technical reading" ( People v Konieczny, 2 NY3d at 576). The accusatory instrument must supply the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy ( see People v Dreyden, 15 NY3d at 103; People v Kalin, 12 NY3d at 231-232; see also People v Casey, 95 NY2d 354, 366 [2000]).
Penal Law § 265.01 (1) specifically prohibits the possession of a gravity knife, among other "per se" weapons. Penal Law § 265.00 (5) defines a gravity knife as a knife "which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device" (see People v Dreyden, 15 NY3d at 104). Moreover, the blade must " lock in place automatically upon its release and without further action by the user' " (People v Dreyden, 15 NY3d at 104, quoting People v Zuniga, 303 AD32d 773, 774 [2003]).
In Dreyden, the factual part of the accusatory instrument merely alleged, in conclusory fashion, that an object recovered from the defendant was a gravity knife. The Court of Appeals determined that such a conclusory statement does not meet the reasonable cause requirement, and that "the accusatory instrument contained no factual basis for the officer's conclusion that the knife was a gravity knife, as opposed to" another type of knife (People v Dreyden, 15 NY3d at 104). In that context, the Court stated that "[a]n arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant's possession was a gravity knife" (People v Dreyden, 15 NY3d at 104).
In the case at bar, the accusatory instrument did not allege that the officer's determination that defendant possessed a gravity knife was based on his training and/or experience with respect to gravity knives. Instead, it alleged that the knife was a gravity knife because the officer opened the knife and it had locked into place through centrifugal force. In People v Sans (___ NY3d at ___, 2015 NY Slip Op 07529, *3), the Court of Appeals determined that an arresting officer need not "recite that he or she has training or experience in identifying gravity knives or expressly state the origin of his or her skills in that area"; rather, the arresting officer need only "explain the basis of his or her conclusion that the defendant's knife was a gravity knife." Giving the accusatory instrument a reasonable and not overly technical reading, we find that the factual part of the accusatory instrument meets the reasonable cause requirement. "[T]he officer's failure to specify the precise motion he used to open the knife did not prevent [the] defendant from preparing his defense or avoiding double jeopardy, and therefore did not amount to a jurisdictional defect" (id.).
Accordingly, the judgment of conviction is affirmed.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 08, 2016