Opinion
2005 NY 039206.
Decided March 15, 2006.
The defendant, Justin Hayes, is charged with criminal possession of a weapon in the fourth degree (PL 265.01(2)) and unlawful possession of ammunition (AC 10.131(i)(3)). He moves to dismiss the charges as facially insufficient, to suppress evidence seized pursuant to a search warrant, to preclude statement and identification evidence, and to preclude the use of his prior criminal history.
FACIAL SUFFICIENCY
The factual allegations in the complaint may be summarized as follows. A search warrant was executed at 420 West 19th Street, Apartment 5J, New York County. At the time, the defendant was present in the living room of the premises and the co-defendant was in the bedroom. It is alleged that both the defendant and the co-defendant stated that they lived in the apartment. The officers recovered a Browning shotgun and a Remington shotgun from a closet outside the bedroom. The officers also recovered twenty-four shotgun rounds from a dresser drawer inside the bedroom, fourteen shotgun rounds from a trunk located in the closet outside the bedroom, and one .38 caliber live round, nine .25 caliber live rounds and sixteen .22 caliber live rounds of ammunition from a trunk located inside the closet outside of the bedroom.
Criminal Possession of a Weapon in the Fourth Degree
Penal Law Section 265.01(2) provides that a person is guilty of criminal possession of a weapon in the fourth degree when he possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any dangerous or deadly weapon with intent to use the same unlawfully against another. Penal Law Section 265.00(12) defines a shotgun as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.
In order to charge defendant with criminal possession of a weapon in the fourth degree, the accusatory instrument must allege facts from which it is established, or from which it might be inferred, that the shotguns were possessed with the intent to use them unlawfully against another.
To "possess" means to have physical possession or to otherwise exercise dominion and control over tangible property. PL 10.00(8). In People v. Manini, 79 NY2d 561, 572-573 (1992), the Court of Appeals, reiterated "that constructive possession is usually established by showing that a defendant exercised dominion and control over the place where contraband was seized or over the person who actually possessed the property . . . the People must show that the defendant exercised dominion or control' over the property by a sufficient level of control over the areas in which the contraband is found or over the person from whom the contraband is seized".
The facts in this case establish something more than mere presence in an apartment where shotguns are concealed. As the shotguns were located in a common area of the apartment, a hallway closet, the court can impute knowledge to the defendant that he knew they were there. The court may further infer that the defendant exercised dominion or control over the premises in which the shotguns were concealed, as he admitted his residence in the apartment. Thus, the complaint is legally sufficient to charge defendant with constructive possession of the shotguns. See, People v. Eustate, 265 AD2d 229 (1st Dept. 1999), app. den. 94 NY2d 919 (2000) (sole occupancy of an apartment by two defendants for a period of 5 to 15 minutes permits a determination that defendants shared dominion and control of the apartment).
The defendant argues, however, that the weapons charge should be dismissed as facially insufficient because the complaint fails to allege facts which establish defendant's possession of the shotguns with intent to use unlawfully against another person.
Generally, the People would have to establish facts which show that the defendant possessed the shot gun with intent to use it unlawfully against another. However, Penal Law Section 256.15(4) provides that 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. This statutory presumption applies to circumstances wherein possession alone of a shotgun may be presumptive evidence of intent and establishes a prima facie case against the defendant, which he may rebut at trial by offering evidence to the contrary. See, People v. Aquart, 171 Misc 2d 114 (Crim.Ct. Bronx Co. 1997). Thus, the motion to dismiss the count charging criminal possession of a weapon in the fourth degree is denied.
Unlawful Possession of Ammunition
Administrative Code Section 10.131(I)(3) provides that it shall be unlawful for any person not authorized to possess a pistol or revolver within the city of New York to possess pistol or revolver ammunition unless he or she is a dealer of rifles or shotguns.
Defendant argues that, as there are no allegations in the complaint that the rounds are operational, the count charging unlawful possession of ammunition remains unconverted.
In order to charge defendant with unlawful possession of ammunition, the operability of the ammunition found inside a dresser drawer in the bedroom and a trunk inside the closet outside of the bedroom must be established. See, People v. Volkes, 1 Misc 3d 829 (Crim.Ct. Richmond Co. 2003). Here, the People have submitted a certified "Firearms Examination Report" (see CPL 190.30(2)), which is attached to the court file. In the report, both the shotguns and the ammunition were tested and found to be operable. Consequently, the essential element of operability is established by non-hearsay allegations and the charge was correctly converted to an information.
SUPPRESSION OF EVIDENCE
In his notice of motion, defendant argues that there was no probable cause for the issuance of the search warrant for the premises and that all evidence seized as a result of his unlawful arrest should be precluded, or that, in the alternative, a Dunaway hearing should be ordered.
The court has reviewed, in camera, the unredacted version of the affidavit submitted in support of the issuance of the search warrant. The People advise that the confidential informant was not interviewed by the issuing court. Since probable cause for issuance of the warrant is predicated exclusively upon the reliability of the informant's information, this court must conduct an in camera Darden hearing, unless the People can show that one of the narrow exceptions excusing such a hearing are present. People v. Edwards, 95 NY2d 486 (2000); People v. Darden, 34 NY2d 177 (1974).
The court intends to conduct the ex parte hearing during the week of April 17, 2006, unless the People earlier move to show that such a hearing is not required. Absent the granting of such a motion, the People are directed to arrange, with the court's Court Attorney, for the date, time and place the informant is to be made available to the court. Defense counsel is invited to submit in writing to the court, within ten days from the date hereof, any questions counsel proposes to have the court put to the informant.
On May 8, 2006, the defendant and his counsel are to appear in Part C, at which time the court will rule on all outstanding motions including the motion to controvert, as well as the motions to suppress physical evidence, to preclude statement and identification evidence and evidence of prior criminal history. The court will also furnish counsel with a summary description of the Darden hearing at that time.
This opinion constitutes the decision and order of the court.