Opinion
2003 NY 061559.
Decided December 18, 2003.
Defendant, Willie Hawkins, is charged with criminal possession of a weapon in the fourth degree (PL 265.01(1)), loitering (for the purpose of gambling) (PL240.35(2)), and disorderly conduct (PL 240.20(5)). He moves to dismiss the charges for facial insufficiency. The motion also seeks (i) suppression of statement evidence or, alternatively, a Dunaway/Huntley hearing, (ii) preclusion of any unnoticed statement or identification evidence, (iii) preclusion of the use at trial of defendant's prior criminal history or misconduct and, (iv) discovery and a bill of particulars.
The complaint alleges that the defendant was observed in front of 201 West 144th Street, in New York City, a public place, standing with eight or ten other people, as a dice game was being played. It is alleged that defendant stated "I was just watching". It is also alleged that defendant was obstructing pedestrian traffic by blocking the front door of the premises as people were trying to exit and prevented them from doing so, causing a public disturbance and inconvenience and the disruption of normal traffic flow. It is further alleged that, in the course of arresting the defendant, a gravity knife, which opened and locked when flipped, was recovered from defendant's pant's pocket.
Facial Sufficiency
An information or a count thereof is facially sufficient if it contains allegations in the factual portion of the accusatory instrument which, when read together with any supporting depositions which may accompany the instrument, (1) provide reasonable cause to believe that the defendant committed the offense(s) charged and (2) establish, if true, by non-hearsay allegations, every element of the offense(s) charged and the defendant's commission thereof. CPL100.40(1)(c) and (b). The information must establish a prima facie case for the offense charged or it must be dismissed. People v. Alejandro, 70 NY2d 133 (1987). The facts may establish a prima facie case, for purpose of pleading an offense, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986).
Loitering
A person is guilty of loitering when he loiters or remains in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia. PL 240.35(2). A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome. PL 225.00(2).
The defendant argues that the loitering count must be dismissed because it only alleges that the defendant was watching a dice game and fails to allege that anything of value was risked or staked. He also argues that the loitering statute is unconstitutionally vague.
The Court of Appeals has found that conduct whereby a group of individuals play dice with the objective that the winner receives money constitutes gambling. See, People ex. rel. Ellison v. Lanvin, 179 NY 164 (1904). Casual dice playing, on the other hand, is not a crime. People ex. rel. Guido v. Calkins, 9 NY2d 77 (1961);
While dice were observed at the scene, their presence, standing alone, is not sufficient to provide reasonable cause to believe that the defendant committed the crime of loitering for the purpose of gambling. There are no facts establishing that the defendant or anyone else staked or risked anything of value. Nor does the complaint allege the existence or exchange of money, or anything else of value at the scene, from which the court may infer wagering.
Thus, there is nothing in the complaint from which the court may reasonably infer that the defendant or others were engaged in loitering for the purpose of gambling and mere presence at a place where dice are being rolled, standing alone, cannot constitute loitering for the purpose of gambling. (cf. People v. Davidson, 291 AD2d 810 (4th Dept. 2002) (alleged that group of men were "shooting dice for money"). Therefore, defendant's motion to dismiss the count charging loitering for the purpose of gambling is granted.
Based on the foregoing, the court need not address the constitutionality of the statute.
Disorderly Conduct
A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he obstructs vehicular or pedestrian traffic. PL 240.20(5).
Defendant maintains that the complaint fails to allege facts establishing his intent to cause public inconvenience or disturbance.
A person acts "intentionally" with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. PL15.05(1). Intent cannot be the subject of a non-hearsay evidentiary allegation unless there are facts from which intent may be inferred. It is axiomatic that intent may be implied from defendant's conduct and/or the surrounding circumstances. People v. Collins, 178 AD2d 789 (3rd Dept. 1991).
In this case, defendant's intent may be implied from the surrounding circumstances, specifically that defendant obstructed pedestrian traffic by blocking the front door of the premises as people were trying to exit and prevented them from doing so, causing a public disturbance and inconvenience and the disruption of normal traffic flow.
At trial, the element of intent must be proven beyond a reasonable doubt. People v. Price, 178 Misc2d 778, 781 (Crim. Ct. N.Y. Co. 1998); People v. Prisinzano, 170 Misc2d 525, 538-39 (Crim.Ct. N.Y. Co. 1996). For pleading purposes, however, the factual allegations provide reasonable cause to believe that the defendant committed the offense of disorderly conduct and establish, if true, by non-hearsay allegations, every element of the charge and the defendant's commission thereof. Therefore, the motion to dismiss the count charging disorderly conduct is denied.
Criminal Possession of a Weapon in the Fourth Degree
Penal Law Section 265.01(1) provides that a person is guilty of criminal possession of a weapon in the fourth degree when he possesses, inter alia, any gravity knife. A gravity knife is defined by statute as any 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. PL 265.00(5).
Defendant contends that the criminal possession of a weapon count must be dismissed as the complaint fails to establish whether the knife had a blade which would render it operable as a gravity knife.
In People v. Williams, 191 Misc2d 293 (App. Term 2nd Dept 2002), the court held that an ". . . information need not contain language that the `gravity knife' fulfilled the definition set forth in PL 265.00(5) or that it is operational." The court noted that although proof that the knife fit the definition or was operable was required for conviction, it was not necessary to satisfy the jurisdictional requirements of an information.
Here, the complaint alleges that the gravity knife recovered from defendant's pant's pocket, opened and locked when flipped. These facts establish an evidentiary basis for the deponent officer to conclude that the knife recovered from the defendant's pant's pocket was a gravity knife.
Accordingly, the allegations as set forth in the complaint are sufficient, for pleading purposes, to provide reasonable cause to believe that defendant possessed a gravity knife and establish, if true, by non-hearsay allegations, every element of the charge thereof. Therefore, the motion to dismiss the charge of criminal possession of a weapon in the fourth degree is denied.
Other Motions
Defendant's motion to suppress physical and statement evidence or, alternatively, for a Dunaway/Mapp/Huntley hearing is granted to the extent that such hearing shall be held.
Defendant's motion to preclude any unnoticed statement or identification evidence is granted.
Defendant's motion to preclude the use at trial of defendant's prior criminal history or misconduct is referred to the trial court.
Finally, discovery and a bill of particulars are granted to the extent provided in the voluntary disclosure form.
This opinion constitutes the decision and order of the court.