Opinion
5932/10.
Decided November 8, 2010.
Lindsay Gerdes, Esq., Kings County District Attorney, Brooklyn, NY, for the People.
Renate J. Lunn, Esq., The Legal Aid Society, Criminal Defense Division, Brooklyn, New York, for Defendant.
The People have submitted the grand jury minutes for the court's inspection. The evidence presented to the grand jury was legally sufficient to sustain the finding of a true bill except as noted below. See, People v. Jensen, 86 NY2d 248 (1995); People v. Pelchat, 62 NY2d 97 (1984).
The evidence on the first count presents a question of interest. Defendant is charged with Criminal Possession of a Weapon in the Third Degree under the theory that he knowingly and unlawfully possessed an "explosive or incendiary bomb," namely, an "M21 Artillery Flash simulator," recovered from his bedroom closet. Defendant questions whether this device is, in fact, an explosive or incendiary bomb within the meaning of Penal Law Section 265.02 (2).
The grand jurors heard testimony from a detective in the NYPD Bomb Squad. The detective related that his unit covered defendant's flash simulator with sandbags and activated it "the way it was supposed to," with an electric charge. The device "went off" with a loud bang. The detective concluded that, in his expert opinion and to a "reasonable degree of scientific certainty," defendant's M21 was an explosive. See People v. Getman, 188 Misc 2d 809, 814 (Co Ct, Chemung Co 2001).
The detective further stated that the M21 is a device used during military training to simulate the sound and flash made when an artillery or tank round is fired. Defendant has submitted military specifications for the M21, obtained from the internet, to similar effect. Defendant would have it, however, that the M21 is in essence a large firecracker, not an "explosive bomb." This court disagrees, based on the grand jury evidence. And no different conclusion can be drawn from defendant's submissions, or from similar documents on the internet.
The Penal Law does not define what an "explosive bomb" is. In People v. Cruz, 34 NY2d 362, 379 (1974), the Court of Appeals noted that similar statutory terms — incendiary, bomb, and explosive substance — are "susceptible of reasonable application in accordance with the common understanding of men. . . ." That "common understanding" would surely exclude, from the category of "explosive bombs," a small firecracker or other similar "exploding" device, even though they contain gunpowder. Cf. Labor Law Section 451. But the M21 is not a firecracker.
Defendant's own submissions confirm that the M21 is a kind of cartridge that is designed to be inserted into a chamber in a detonating "gunfire device." The M21 cartridge is "a device utilizing energy produced by explosives, propellants, or pyrotechnics or a combination thereof." When the "gunfire device" delivers an electric charge to the M21, the result is a flash, a noise, and smoke like that produced by the firing of a tank.
Defendant's submissions, invited by the court, are of course outside the grand jury evidence. But it seems reasonable to consider them and to supplement them with the other specifications for the M21 available on the internet. For example, Section 4.5.12 of "Simulator, Artillery Flash, M21, Performance Specifications For" indicate the risk that detonation of the device can spray fragments for dozens of meters. See http://www.tpub.com/content/MIL-SPEC/ MIL-S/MIL-S-63433D/ A letter from the Government Accounting Office to Senator Hutchinson suggests that the M21 has been responsible for numerous injuries. See http://www.gao.gov/new.items/d011113r.pdf The available materials by no means suggest that the M21 is a toy.
Defendant also complains that the M21 is just a cartridge, and that a detonation of the M21 cannot be triggered by heat or by a drop from a height. He concludes that, if no detonator was recovered, his cartridge cannot be considered an explosive bomb. At this time, however, the grand jury evidence provides no basis to conclude that the trigger required for detonation of an M21 is anything but a simple electric current. Thus, the court has no basis for concluding that the M21 is too hard to set off for it to be an "explosive bomb."
As to Count 2, unlawful possession of ammunition in violation of New York City Administrative Code § 10-131 (i) (3), although the indictment alleges that defendant was not authorized to possess pistol or revolver ammunition, no facts were elicited to prove the statutory element that the person charged with possession of ammunition is not authorized.
The statute reads: "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, provided that a dealer in rifles and shotguns may possess such ammunition." NY City AC § 10-131 (i) (3).
Generally, when the defining statute contains an exception, the burden is on the People to plead and prove that the crime is not within the exception. People v. Kohut, 30 NY2d 183 (1972); People v. Santana , 7 NY3d 234 (2006); People v. Sylla, 7 Misc 3d 8 (Sup. Ct, App. Term, 2d Dep't, 2005); People v. Flowers , 8 Misc 3d 516 (Crim. Ct, NY Co., 2005). But when the exception is found outside the statute, it is termed a "proviso" and the People need neither plead nor prove its negative in order to make out a prima facie case. People v. Sylla at 12. A proviso is generally a matter for the defendant to raise in defense. People v. Kohut at 187.
The Administrative Code provision charged in the indictment contains two exceptions in the defining statute. Possession of ammunition is not a crime if the person in possession is licensed to possess a pistol or revolver. The other exception makes it not a crime to possess ammunition if the possessor is a dealer in rifles and shotguns. No evidence was offered by the People to prove that defendant was not authorized to possess ammunition, either because he was licensed to possess a firearm or because he was a dealer in rifles and shotguns. The case law is helpful in determining whether this circumstance is fatal to the issue.
In People v. Davis ( 13 NY3d 17 ) the Court of Appeals observed that "[t]he murky contours of exceptions' and proviso' have long been the subject of debate." At issue in Davis was an exception contained in a New York City Parks Department rule which provided that no person shall fail to obey park signs, "except such sign may be disregarded upon order" by a police officer or parks department employee. 56 RCNY § 1-03 (c) (2).
The Court concluded in Davis that "as a matter of common sense and reasonable pleading," the City's Parks Department did not intend that the People plead and prove that no police officer or Parks Department employee had authorized defendant to ignore a posted closing time. "Such information is uniquely within a defendant's knowledge, and to require the People to plead and negate the existence of the relevant permission would require them to go to intolerable lengths,' including innumerable interviews of officers and employees in the area during the date in question." (citing People v. Devinny, 227 NY 397). "These efforts would serve [n]o useful purpose of narrowing issues or giving notice,'" but would merely give rise to "technicalitie[s that] could be used belatedly to stifle an otherwise viable prosecution'" (cf. People v Kohut, 30 NY2d 183, 191)." As such, we hold that the Parks Department intended the police officer/department employee qualifying language to operate as a proviso' that must be pleaded and proved by the defendant."
People v. Flowers ( 8 Misc 3d 516 [Crim. Ct, NY Co., 2005]) involved another city statute containing an exception, a transit authority regulation prohibiting solicitation in the subway. It provides that "[n]o person, unless duly authorized by the authority shall engage in any commercial activity upon any facility or conveyance." Transit Authority Regulation § 1050.6 (b)(2). The Flowers court concluded that the People were required to plead and prove lack of authorization. Although acknowledging that "[t]he distinction should not be so mechanically applied that substance yields to form," the court found that it would not impose an undue burden on the People to prove the defendant lacked authorization to engage in the activity alleged. The court reasoned that a police officer is empowered to ask for, and defendant required to provide, true information or documents and, in addition, the Rules could be amended to provide that failure to display or provide proof of authorization when requested shall be presumptive evidence that a person is not duly authorized.
Analyzing the case at bar in terms of the standard articulated in Devinny, and cited in Davis, Flowers and other cases addressing the exception/proviso problem, this court concludes that with respect to the charge in Count 2, requiring the People to present evidence of lack of authority would not be unduly burdensome. A person suspected to be in unlawful possession of ammunition can be asked to produce a license to possess a pistol or revolver or to produce proof that he or she is a dealer in rifles or shotguns. Further, the government will presumably have its own records on both subjects, as in Flowers. The People would not be required to go to "intolerable lengths" to plead and negate defendant's lack of authority as would be required with the parks department rule at issue in People v. Davis ( 13 NY3d 17 ).
Accordingly, Count 2 of the indictment is dismissed with leave to re-present.
The assistant district attorney correctly instructed the grand jury with respect to the applicable law. People v. Calbud, Inc., 49 NY2d 389 (1980).
This constitutes the decision and order of the court.