Opinion
2009NY093088
4-20-2010
THE PEOPLE OF THE STATE OF NEW YORK, v. MICHAEL GIVENNI, DAVID CLARK, AND KEVIN CUNNINGHAM, Defendants.
The People were represented by Cyrus R. Vance, Jr., New York County District Attorney (Eric Gerard of Counsel), 212-335-4346. Defendant Givenni was represented by Lance Fletcher, Esq., 212-619-3900. Defendant Clark was represented by The Law Office of Gilda M. Bailey P.C, (Anthony Bailey, Esq., of Counsel), 212-859-3530. Defendant Cunningham was represented by Steven Banks, Esq., The Legal Aid Society (Lawrence Linzer, Esq., of Counsel) 212-298-5175.
Nothing makes a little kid smile more than being handed a balloon. However, in this case of first impression, this Court holds that helium is also a noxious material under 270.05 of our Penal Law and denies the defendant's motion to dismiss.
The defendants were charged with unlawfully possessing or selling noxious material (P.L. §270.05). The defendants moved the court for an order inter alia: dismissing the accusatory instrument for facial insufficiency; and dismissing the accusatory instrument in the furtherance of justice. The motion for facial insufficiency was denied on the record on February 18, 2010. This is a written confirmation of that decision.
FACIAL SUFFICIENCY
An accusatory instrument upon which the defendant may be held for trial "must allege facts of an evidentiary character' (CPL §100.15[3]) demonstrating reasonable cause to believe that the defendant committed the crime charged (CPL §100.40[4][b])." People v. Dumas, 68 NY2d 729, 731 (1986). Further, a valid criminal court information must contain non-hearsay factual allegations which, if true, "establish . . . every element of the offense charged and the defendant's commission thereof." CPL §100.40(1)(c).
The within accusatory instrument states that on December 3, 2009, at about 8:15 p.m. in New York County:
Deponent . . . observed defendants Cunningham, Givenni and Clark filling balloons with helium from four large helium tanks. Deponent further states that defendants Cunningham, Givenni and Clark exchange [sic] said filled balloons for United States currency to unapprehended individuals. Deponent further states that said unapprehended individuals, thereafter, inhaled the contents of said balloon.
Deponent further states that deponent has examined the above-described canister and believes said canister contains a noxious material, based upon information and belief, the source of which is as follows: (i)deponent's professional training and experience as a police officer in the identification of noxious materials, and (ii)observation of the packaging which is characteristic of a noxious material.
Unlawfully Possessing or Selling Noxious Material (P.L. §270.05[2])
"Noxious material" is defined as "any container which contains any drug or other substance capable of generating offensive, noxious or suffocating fumes, gases or vapors, or capable of immobilizing a person." P.L. §270.05(1).
A violation of P.L. §270.05(2) occurs when a person "possesses such material under circumstances evincing an intent to use it or to cause it to be used to inflict physical injury upon or cause annoyance to a person, or to damage property of another, or to disturb the public peace." P.L. §270.05(2).
"Possession of noxious material is presumptive evidence of intent to use it or cause it to be used in violation of this section." P.L. §270.05(3).
The charge of unlawfully possessing or selling noxious material is facially sufficient. It was clearly the legislative intent in enacting P.L. §270.05 to prohibit the possession of "certain chemical sprays which temporarily immobilize a person." Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 33, P.L. §270.05 (2008 ed.).
Some of these products — sold under a variety of brand names — are essentially pressurized cans containing a solution of chloroacdtophenone (tear gas). They are capable of causing temporary loss of vision and breath, a feeling of suffocation, and considerable discomfort. They can incapacitate a person in several seconds, and
render him or her powerless for fifteen to thirty minutes.
Id.
It is clear that the statute is aimed at proscribing "the possession of such noxious materials as tear gas and gas bombs, substances which are designed and calculated to inflict physical injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace.'" In re M., 65 Misc 2d 609 (Family Ct. Queens County 1971). However, aside from the legislative intent, other substances still can fall within the ambit of P.L. §270.05.
Helium is defined as a colorless, odorless, tasteless, non-toxic, inert monatomic gas that heads the noble gas group in the periodic table. See, Wikipedia, The Free Encyclopedia, at http://en.wikipedia.org/wiki/Helium. Although "neutral helium at standard conditions" should not pose a health risk, excessive inhalation of the gas can cause asphyxiation. See, New World Encyclopedia, at http://newworldencyclopedia.org/entry/Helium.
People will sometimes inhale helium in order to temporarily make their voices sound high-pitched. "Although this effect may be amusing, it can be dangerous if done in excess." New World Encyclopedia, at http://newworldencyclopedia.org/entry/Helium. This is "because helium displaces oxygen needed for normal respiration." Id. "Inhaling helium directly from pressurized cylinders is extremely dangerous, as the high flow rate can result in barotrauma, fatally rupturing lung tissue." Wikipedia, The Free Encyclopedia, at http://enwikipedia.org/wiki/Helium. Additionally, "[o]n loss of containment, this gas can cause suffocation by lowering the oxygen content of the air in confined areas." See Lenntech, at http://www.lenntech.com/periodic/elements/he.htm.
As such, even though the legislature may not have intended to include helium within the parameters of P.L. §270.05, helium can be considered a noxious material. It is capable of generating noxious or suffocating fumes and it can immobilize a person upon excessive inhalation.
Although the defendants may not have intended to use the helium to inflict physical injury or cause annoyance to a person or to damage property of another or to disturb the public peace, possession of noxious material is presumptive evidence of intent to use it in violation of the statute. P.L. §270.05(3). The statutory presumption "establishes a prima facie case against the defendant, which he may rebut at trial by offering evidence to the contrary (citation omitted)." People v. Hayes, 11 Misc 3d 1084(A) (Crim. Ct. NY County 2006).
Accordingly, the factual allegations are sufficient, at the pleading stage, to support the charge of unlawfully possessing or selling noxious material (P.L. §270.05[2]).
The defendant's motion to dismiss the accusatory instrument for facial insufficiency is denied.
FUTHERANCE OF JUSTICE
The defendants also moved for dismissal in the furtherance of justice. For the following reasons, the motion to dismiss in the furtherance of justice is denied.
Even where there is no basis for dismissal of a criminal action as a matter of law, the Court as a matter of judicial discretion, may dismiss the action in the furtherance of justice and fairness (People v. Clayton, 41 AD2d 204, 207-208 [2d Dept 1973]; CPL §170.40[1]). The use of this extraordinary remedy depends solely upon the justice to be served by dismissal, rather than the legal or factual merits of the prosecution or the guilt or innocence of the defendant (People v. Clayton, supra at 206; People v. Cohen, 112 Misc 2d 377, 380 [Crim. Ct. Kings County 1981]). A Clayton motion should be granted only in those unusual instances where a defendant has demonstrated by a preponderance of the credible evidence that a compelling reason exists to warrant dismissal in the interest of justice. Where the defendant does not meet this burden, the Court may summarily deny the motion (People v. Schlessel, 104 AD2d 501, 502 [2d Dept 1984]). The Court, to the extent applicable, must examine and consider individually and collectively the merits of the instant defendant's application in light of the factors enumerated in CPL §170.40(1)(a) through (j), and weigh the respective interests of the defendant, the complainant and the community at large (People v. Rickert, 58 NY2d 122, 127 [1983]; People v. Belkota, 50 AD2d 118, 120 [4th Dept 1975]).
The Court's application of the factors set forth in CPL §170.40(1)(a-j) is as follows:
a) Seriousness of the offense
It is self-evident that the offense charged is inherently serious.
b) Extent of harm caused by the defendant
Although any harm that could have occurred from the possession of the helium was thwarted by police action, extreme harm could have resulted from the excessive inhalation of such gas.
c) Evidence of guilt
Sufficient evidence exists to form a strong case against the defendant. The defendant was observed by the police to be selling the helium to individuals who inhaled the substance.
d) History, character and condition of the defendant
The defendant has failed to provide any personal background factors for the Court to consider.
e) Exceptionally serious misconduct of law enforcement personnel
The defense has not alleged that there was any serious misconduct by law enforcement personnel.
f) The purpose and effect of imposing a sentence authorized for the offense upon the defendant
Among the purposes of imposing a sentence upon a defendant who is convicted of a crime is deterrence. The deterrence is aimed at the defendant and at the public at large. In the event that a dismissal is granted, the defendant, or any other person, may think it acceptable to possess noxious materials for the purpose of inflicting physical injury, causing annoyance to a person, damaging the property of another or disturbing the peace. The effect of imposing a sentence is to inform the public that the conduct allegedly engaged in by the defendant will not be tolerated.
g) The impact of dismissal on the safety or welfare of the community
The safety and welfare of the community will be affected by a dismissal of the charges. As noted above, without punishment others may disregard the importance of the laws prohibiting the unlawful possession of noxious material for the purpose of using it to inflict physical injury, or to cause annoyance to a person, or to damage property of another or to disturb the public peace.
h) The impact of dismissal upon the confidence of the public in the criminal justice system
A dismissal of these charges would cause the public to lose confidence in the criminal justice system. The public would view the system as unconcerned or cavalier about the possession of noxious materials.
i) Attitude of the victim with respect to the motion
The victims are society, in general, because of the problems that can occur as a result of the possession of noxious materials. Society does not look favorably on the unlawful possession of noxious materials.
After full consideration of the relevant criteria, the Court does not find any compelling factor, consideration or circumstance that clearly demonstrates that conviction or prosecution of the defendant would result in an injustice. It would, therefore, be an inappropriate exercise of the Court to dismiss the accusatory instrument in the furtherance of justice.
The defendant's motion to dismiss in the furtherance of justice is, therefore, denied.
The matter is scheduled for trial on April 21, 2010.
This opinion shall constitute the decision and order of the Court. --------------- Notes: The Court is aware of the holdings in People v. Gunatilaka, 156 Misc 2d 958, 961 (Crim. Ct. NY County 1993), and People v. Parker, N.Y.L.J., June 7, 1996, at 34, col. 2 (Crim. Ct. Bronx County) that in order for an accusatory instrument to be facially sufficient, a laboratory report is necessary to demonstrate the existence of a noxious material in the containers. It would seem that in light of People v. Kalin, 12 NY3d 225 (2009), a laboratory report is unnecessary.