Opinion
2013-02-28
The PEOPLE of the State of New York v. JIN LU, Shu Lin, Defendants.
Assistant District Attorney, Nussair P. Habboush, Attorney for Defendant Jin Lu. Reda Woodcock, Legal Aid Society, Attorney for Defendant Shu Lin.
Assistant District Attorney, Nussair P. Habboush, Attorney for Defendant Jin Lu. Reda Woodcock, Legal Aid Society, Attorney for Defendant Shu Lin.
Stuart Birbach, County Law.
GILBERT C. HONG, J.
Defendants were arraigned on September 28, 2012, and were charged with PL § 265.01(1), Criminal Possession of a Weapon in the Fourth Degree, a class A misdemeanor.
The facts allege that Officer Majid Ghaffar observed defendants Lin and Lu each carrying a bludgeon, and that he did recover the bludgeons from the ground where he observed the defendants drop them.
Officer Ghaffar's supporting deposition specifies that the instrument he recovered from each defendant was a metal pipe.
On or about January 7, 2013, Defendant Lu moved to dismiss the information on the ground that the accusatory instrument is facially insufficient. Defendant Lin joined in defendant Lu's motion in a letter dated January 13. The People referred to both defendants in their opposition papers. This Court, therefore, considers both defendants as movants herein.
The Parties' Contentions
The defendants contend that the complaint “alleges the legal conclusion that the defendant was in possession of a bludgeon' without supplying factual allegations supporting said conclusion.” (Defendant Lu Affirmation, ¶ 5), and that “a metal pipe is not a bludgeon.” ( Id. at ¶ 7).
The People, citing, inter alia, People v. McPherson, 220 N.Y. 123, 126, 115 N.E. 515 (1917) and People v. Ford, 122 Misc.2d 716, 471 N.Y.S.2d 813 (Crim. Ct., New York County, 1984) counter that the question as to whether the metal pipe is a bludgeon is a “factual determination for a jury to make.” (People's Memorandum of Law, ¶ 10).
Legal Analysis
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the offenses charged. CPL §§ 100.15(3); 100.40(1)(b); 70.10. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. CPL § 100.40(1)(c). An information which fails to satisfy these requirements is jurisdictionally defective. CPL §§ 170.30 and 170.35; People v. Alejandro, 70 N.Y.2d 133, 136–37, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987); People v. Dumas, 68 N.Y.2d 729, 730, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986).
PL § 265.01 states:
“A person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot, shirken, or Kung Fu star;”
The general rule is that where the legislature lists specific items in a statute, it implies the exclusion of other similar items. People v. Visarities, 220 A.D. 657, 659, 222 N.Y.S. 401 (1st Dept. 1927).
While the statute does not define a bludgeon, definitions often taken from various dictionaries have been adopted by the courts: “A short stick, with one end loaded or thicker and heavier than the other, used as an offensive weapon...” People v. Visarities, id. at 659, 222 N.Y.S. 401; “a short club commonly loaded at one end or bigger at one end than the other, used as a weapon”; People v. McPherson, supra at 125, 115 N.E. 515; a rigid or inflexible object, weighted, thicker or heavier on one side, used as an offensive weapon. People v. Braunhut, supra at 687, 421 N.Y.S.2d 763.
Courts have thus analyzed whether the weapons recovered fit the various definitions of a bludgeon. People v. Visarities, supra, (conviction of defendant of possessing a bludgeon reversed where the weapon, an iron bar measuring 20? long and 3/8– 1/2? in diameter was not found to be a bludgeon); People v. Kennedy, 164 N.Y. 449, 58 N.E. 652 (1900) (where an iron rod had been inserted in a metal pipe and the pipe was wound at one end with tape, weapon was found to be a bludgeon); People v. Braunhut, 101 Misc.2d 684, 687, 421 N.Y.S.2d 763 (Crim. Ct., Queens County, 1979) (after a hearing, the court found that the “spring whip” possessed by the defendant was not weighted, was flexible, and was used as a defensive weapon, and was, therefore, not a bludgeon); People v. Phillips, 7 Misc.3d 1004(A), 2005 WL 756577 (County Ct., Lawrence County 2005) (court held that the “collapsible baton” recovered from the defendant did not fit the strict definition of a “billy”).
The items recovered from the instant defendants have been described only as metal pipes. While the metal pipes may be prohibited weapons under subdivision (2) of PL § 265.01 if there exists the requisite intent to use them unlawfully against another, the defendants herein have been charged under subdivision (1). Following the strict definition rule outlined above, and guided by every definition of bludgeon reviewed in cases spanning the past century, it seems clear that while metal pipes may be used as dangerous weapons, possession of a metal pipe is not per se prohibited.
Further, this Court does not adopt the reasoning argued by the People and set forth in People v. Ford, supra,
that it is for the trier of fact to look at the totality of circumstances to determine whether the weapon is prohibited pursuant to PL § 265.01(1). Similarly, People v. McPherson, supra, cited for this proposition by the People is not precisely on point. In McPherson, the Court did find that evidence considered by the jury included the way the instrument was carried and the intent to inflict bodily harm, as well as the ability of the weapon to inflict serious injury. However, the Court therein held that the jury finding that the baseball bat with the top end broken off was a bludgeon, was justified. “It was a bludgeon within the contemplation of the statute,” 220 N.Y. at 125, 115 N.E. 515, and found that the weapon met the definition of a bludgeon, namely a stick, with one end thicker or heavier than the other, used as an offensive weapon.
Which jurisdiction, Criminal Court, New York County, is not binding on this court.
Dismissal would not be an appropriate remedy where the People may be able to amend or supersede. See,CPL § 140.45; 100.50; People v. Coley, 38 Misc.3d 1220(A), 2013 WL 465888 (Crim. Ct., Bronx County 2013); People v. Gonzalez, 184 Misc.2d 262, 264, 708 N.Y.S.2d 564 (App. Term, 1st Dept. 2000), lv. denied,95 N.Y.2d 835, 713 N.Y.S.2d 142, 735 N.E.2d 422 (2000).
However, while on notice by way of the defendants' motion that the metal pipes recovered did not fit the description or definition of a bludgeon, the People did not supersede and did not request an opportunity to amend or supersede with any additional facts.
The People are not able to establish even a prima facie case that the weapons recovered fall under the definition of a per se weapon, namely a bludgeon.
Conclusion
Accordingly, the defendant's motion to dismiss for facial insufficiency is granted, and the charge against the defendants is dismissed.
This opinion constitutes the decision and order of this Court.