Opinion
CR-014408-17QN
11-08-2017
The PEOPLE of the State of New York, Plaintiff, v. Koatnis LOWE, Defendant.
For the People: Chrystina Lopera, Assistant District Attorney For Defendant: Emily T. Lurie, Queens Law Associates
For the People: Chrystina Lopera, Assistant District Attorney
For Defendant: Emily T. Lurie, Queens Law Associates
Karen Gopee, J.Summary of the Court's Decision
(1) The superseding instrument is DEEMED AN INFORMATION, and the defendant's motion to dismiss it as a nullity is DENIED.
(2) Holding: The exemptions to P.L. § 270.05(2) found in P.L. §§ 265.20(14) and 270.05(5) are provisos, not exceptions.
(3) The defendant's motion to dismiss counts 1 and 4 of the superseding information—namely Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01(2) ) and Unlawful Possession of Marihuana (P.L. § 221.05)- as facially insufficient is GRANTED.
(4) The defendant's motion to dismiss one of four counts of count 3 of the superseding information—namely Possession of a Knives or Instruments (A.C. § 10-133(b) )—is GRANTED.
(5) The defendant's motion to dismiss counts 2 and 5 of the superseding information—namely Unlawfully Possessing or Selling Noxious Material (P.L. § 270.05(2) ) and a Vehicle Equipment Violation ( V.T.L. § 375(2)(a)(4) )—is DENIED.
The defendant, Koatnis Lowe, was charged initially with four counts of Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01(2) ) and one count each of Unlawfully Possessing or Selling Noxious Material (P.L. § 270.05(6) ); Unlawful Possession of Marihuana (P.L. § 221.05); and a Vehicle Equipment Violation ( V.T.L. § 375(2)(a)(4) ). On April 28, 2017, the People filed a superseding accusatory instrument dismissing three counts of Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01(2) ); modifying the charge of Unlawfully Possessing or Selling Noxious Material (P.L. § 270.05) from subsection 6 to subsection 2; and adding four counts of Possession of a Knives or Instruments (A.C. § 10-133(b) ).
The defendant now moves this Court to dismiss the superseding accusatory instrument as a nullity and dismiss the underlying accusatory instrument on facial insufficiency grounds. The People, by written response, contest the defendant's position that the superseding accusatory instrument is not an information and oppose his motion to dismiss any charged counts as facially insufficient, excepting one count of A.C. § 10-133(b). After a review of the defendant's motion and reply brief, the People's response and surreply brief and the court file and record, this Court makes the following findings.
The Superseding Accusatory Instrument
The Superseding Accusatory Instrument is an Information
Where the People choose to supersede a misdemeanor accusatory instrument, it "must ... be replaced and superseded by an information." C.P.L. § 100.50(3). As such, an attempt by the People to supersede with a mere complaint must be viewed as a nullity, and the case must continue under the original accusatory instrument. Accord , e.g. , People v. Valerio , 54 Misc. 3d 791, 799 n.2, 42 N.Y.S.3d 620 (Crim. Ct., N.Y. Co. 2016).
Here, the defendant asserts that the superseding instrument filed in this case is not an information because (1) the P.L. § 221.05 count is alleged based upon hearsay field test documentation that has not been filed with the court or served upon defense counsel and (2) multiple counts contained therein are facially insufficient. However, every count of the instant superseding instrument is based on the first-person account of Police Officer Bobby Aronis. Even though Officer Aronis' allegation that the defendant possessed marijuana was based, in part, on the field test, it also was based upon his own experience and training with identifying marijuana and its packaging.
An information "is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, none of which is a felony." C.P.L. § 100.10(1). The defendant errs in asserting that the superseding instrument is not an information based upon a mistaken belief that, to be valid, the superseding instrument must be a facially sufficient information. The sufficiency question—i.e., whether the nonhearsay allegations of the superseding instrument are sufficient to support each charge, and in particular, whether the officer's firsthand observations, independent of the hearsay field test, are sufficient to support the P.L. § 221.05 count—arises only after it can be affirmatively stated that the instrument is an information. In this case, because every charged count is made pursuant to the nonhearsay accounts of deponent Police Officer Aronis, the superseding instrument is DEEMED AN INFORMATION , and the defendant's motion to dismiss it as a nullity is DENIED .
Allegations of the Superseding Information
In addressing the defendant's facial insufficiency arguments, this Court must presume true all non-hearsay, evidentiary allegations of the information and any supporting documentation. See P.L. § 100.40(1)(c) ("[T]he non-hearsay allegations of the factual part of the information ... [must] establish, if true , every element of the offense charged and the defendant's commission thereof.") (emphasis added); People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000) (quoting P.L. § 100.40(1)(c) ).
Between 9:30 and 9:43 p.m. of April 12, 2017, deponent Police Officer Bobby Aronis saw the defendant driving a minivan with unilluminated license plate lights. After affecting a stop, the officer recovered two machetes with blades more than four inches long and one axe hatchet from the vehicle's trunk. The officer also recovered a knife with a blade more than four inches long, a canister of pepper spray and a plastic bag of marijuana from the defendant's jacket pocket. Officer Aronis determined the substance was marijuana based upon his training in identifying controlled substances and marijuana, and their packaging. The defendant told Officer Aronis that "the pepper spray [is] for protection on the way home."
Additionally, it is alleged that Police Officer Fathi performed a field test upon which the substance tested positive for marijuana. However, as this hearsay allegation lacks necessary supporting documentation, it is of no moment for purposes of facial sufficiency analysis.
Facial Sufficiency Analysis
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." People v. Smalls , 26 N.Y.3d 1064, 1066, 23 N.Y.S.3d 134, 44 N.E.3d 209 (2015) (quoting People v. Dreyden , 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 (2010) ); see also C.P.L. §§ 170.30 ; 170.35. Such a facially sufficient and valid misdemeanor information must contain non-hearsay, non-conclusory, factual allegations of an evidentiary character that establish every element of, and constitute reasonable cause to believe the defendant committed the charged offenses. See C.P.L. §§ 70.10 ; 100.15(3); 100.40(1)(b) & (c); People v. Alejandro , 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987) ; People v. Dumas , 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986). Further, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Ocasio , 28 N.Y.3d 178, 180, 43 N.Y.S.3d 228, 65 N.E.3d 1263 (2016) (quoting People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000) ).
Count 1: Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01(2) )
One criminally possesses a weapon in the fourth degree by "possess[ing] any ... weapon with intent to use the same unlawfully against another." P.L. § 265.01(2). In this case, the information contains absolutely no allegations allowing for the reasonable inference that the defendant intended to use the axe hatchet or one of the machetes in the minivan's trunk, or the pocket knife in his jacket pocket, against another. Therefore, the defendant's motion to dismiss the P.L. § 265.01(2) count as facially insufficient is GRANTED .
Count 2: Unlawfully Possessing or Selling Noxious Material (P.L. § 270.05(2) )
It is unlawful to "possess[ ] noxious material [as defined in P.L. § 270.05(1) ] under circumstances evincing an intent to use it or to cause it to be used to inflict physical injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace." P.L. § 270.05(2). Further, mere possession alone "is presumptive evidence of intent to use it or cause it to be used in violation of this section." P.L. § 270.05(3).
However, "[s]elf-defense sprays [are] not prohibited" if the possessor and device conform to specific requirements. P.L. § 270.05(5) (incorporating P.L. § 265.20(14) by reference). Specifically, a person who is eighteen years old or older, and has not been convicted of a crime that would constitute a felony or assaultive crime in New York, may lawfully possess a "pocket-sized" type of "self-defense spray device ... containing tear gas, pepper or similar disabling agent." P.L. § 265.20(14)(a) & (b); see also P.L. § 270.05(5). Thus, the question arises whether this "exemption under" P.L. § 265.20(14), as referenced in P.L. § 270.05(5), constitutes a "exception" or a "proviso" to P.L. § 270.05(2).
As a general rule,
when a statute contains as part of its enacting clause an exception to the effect that under certain circumstances the offense is not to be considered as having been committed, that constitutes a true exception which must be negated by the prosecution. However, if the exception is enacted later in the statute or in a subsequent statute, it is a proviso which the People need neither plead nor prove the negative of in order to make out a prima facie case.
People v. Sylla , 7 Misc. 3d 8, 12, 792 N.Y.S.2d 764 (App. Term, 2d and 11th Jud. Dists. 2005) (citing , inter alia , People v. Kohut , 30 N.Y.2d 183, 186, 331 N.Y.S.2d 416, 282 N.E.2d 312 (1972) ). With respect to P.L. § 270.05(2), the provisions under which possession of self-defense sprays is lawful are found either "later in the statute" that initially outlaws such possession (i.e., P.L. § 270.05(5) ) or in a wholly separate statute (i.e., § 265.20(14) ). Thus, Sylla makes clear that these provisions constitute a proviso that the People need not disprove in the accusatory instrument. This conclusion is further supported by the language of P.L. § 270.05. The statute first creates a presumption of unlawful intent based solely upon one's possession of noxious material. It next deems the presumed illegality rebutted only if certain prerequisites are met. This statutory scheme evinces a legislative intent that the defendant bear the burden of demonstrating a lawful right to possess noxious material. See People v. Torres , 47 Misc. 3d 24, 25-26, 5 N.Y.S.3d 796 (App. Term, 2d Dept., 2d, 11th and 13th Jud. Dists. 2015) ("the determination of whether an exclusion is 'a proviso that the accused may raise in defense of the charge rather than an exception that must be pleaded by the People in the accusatory instrument' is ultimately a matter of legislative intent") (quoting People v. Santana , 7 N.Y.3d 234, 237, 818 N.Y.S.2d 842, 851 N.E.2d 1193 (2006) ). See also McKinney's P.L. § 265.20, Practice Commentaries (2014) (The exemptions of P.L. § 265.20 "are in the nature of a defense; the defendant is required to raise the exemption before the government is required to disprove it beyond a reasonable doubt").
Accordingly, this Court HOLDS that the exemptions of P.L. §§ 265.20(14) and 270.05(5) are provisos to P.L. § 270.05(2). As such the People are not required to affirmatively disprove their applicability for facial sufficiency purposes. Further, as the P.L. § 270.05(2) charge is made out sufficiently within the four corners of the superseding information, the defendant's motion to dismiss this count as facially insufficient is DENIED .
Count 3: Possession of a Knives or Instruments (A.C. § 10-133(b) ) (4 counts)
"It shall be unlawful for any person to carry on his or her person or have in such person's possession, in any public place, street, or park any knife which has a blade length of four inches or more." A.C. § 10-133(b). In this case, the People correctly concede that one count of this charge is facially insufficient in that the axe hatchet is not alleged to have had a blade of four inches or more. As such, the defendant's motion to dismiss one count of A.C. § 10-133(b) is GRANTED .
Count 4: Unlawful Possession of Marihuana (P.L. § 221.05)
With respect to the P.L. § 221.05 count and the unconsidered hearsay field testing, the People contend that "[n]either a lab report nor a field test report is necessary for the accusatory instrument to be deemed an information in a marijuana case if the deponent swears that he believes the substance to be marijuana based on his training and experience." People's Response at 3. The People are partially correct.
See ante n.1.
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It is well settled that laboratory reports and field test reports are not necessary prerequisites to going forward at the pleading stage. See , e.g. , People v. Kalin , 12 N.Y.3d 225, 230, 878 N.Y.S.2d 653, 906 N.E.2d 381 (2009) ("we reject[ ] the accused's argument that a laboratory report is required to establish a prima facie case of drug possession"). However, the Kalin Court also held that, to be minimally satisfactory for facial sufficiency purposes, an information alleging misdemeanor possession of marijuana or a controlled substance must
[1] adequately identif[y] a particular drug, [2] allege[ ] that the accused possessed that illegal substance, [3] state[ ]
the officer's familiarity with and training regarding the identification of the drug, [4] provide[ ] some information as to why the officer concluded that the substance was a particular type of illegal drug, and [5] suppl[y] sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.
Id. at 230-231, 878 N.Y.S.2d 653, 906 N.E.2d 381. In this case, the superseding information fails to satisfy the fourth of this five-pronged base Kalin standard, as it is devoid of descriptions of the unique characteristics of the substance and its packaging that led to the officer's conclusion that it was specifically marijuana. Accordingly, the P.L. § 221.05 count was not alleged sufficiently, and the defendant's motion to dismiss it is GRANTED .
Count 5: Vehicle Equipment Violation ( V.T.L. § 375(2)(a)(4) )
In this case, the deponent police officer alleges that the defendant was "operating a gray 2006 Honda minivan with defective license plate lights, in that it [sic] was not illuminated." Superseding Information at 2. This allegation sufficiently pleads every element of this statute. Therefore, the defendant's motion to dismiss this count of the superseding information is DENIED .
This constitutes the decision and order of this Court.