Opinion
June 19, 2000.
Legal Aid Society, New York City (Joanne M. Daley of counsel), for defendant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Amy Amster of counsel), for plaintiff.
Background
The defendant is charged with Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01) and Possession of Knives or Instruments (Administrative Code § 10.133[b]). The information, sworn to by the arresting officer, states in its entirety the following:
Police Officer Kenneth Scianna, shield #28141 of the 861, being duly sworn, deposes and says as follows:
On October 29, 1999, at about 800 hours at CITY HALL "R" SUBWAY in the County and State of New York, the defendant committed the offenses of:
1. PL 265.01 (2) Criminal Possession of a Weapon 4th Degree
2. AC 10.133 (B) Possession of Knives or Instruments
in that the defendant possessed a dangerous or deadly instrument with intent to use it unlawfully against another; and the defendant unlawfully possessed in a public place a knife with a blade length of four inches or more.
The offenses were committed under the following circumstances:
Deponent states that deponent recovered one dagger from the defendant's jacket pocket.
Deponent further states that he measured said dagger and that the blade is greater than 4 inches.
The defendant has moved to dismiss the information. He argues that because the information fails to allege in its factual portion that he possessed the dagger with "intent to use it unlawfully against another," Penal Law 265.01 (2), it is facially insufficient under Criminal Procedure Law (CPL) § 100.40, which requires that the "factual part" of the information contain nonhearsay allegations supporting each element of the crime. In response, the People note that the allegation of the defendant's intent is made in the charging portion of the information. To satisfy the requirements of CPL § 100.40, they rely on the presumption of intent contained in Penal Law § 265.15 (4), which provides in pertinent part that "[t]he possession by any person of any dagger . . . is presumptive evidence of intent to use the same unlawfully against another." Therefore, the People argue, it is sufficient that the charging portion of the information recites that the defendant intended to use the instrument unlawfully.
Discussion
Sections 100.15 and 100.40 of the Criminal Procedure Law require the People to file an accusatory instrument based on nonhearsay evidence. The purpose of this requirement is to prevent the People from bringing baseless prosecutions See, e.g., People v. Stridiron, 175 Misc.2d 16, 17 (Crim.Ct. Queens Cty. 1997);People v. Pierre, 157 Misc.2d 812, 814-15 (Crim.Ct. N.Y. Cty. 1993). The Criminal Procedure Law envisions an accusatory instrument composed of two distinct parts. The first part is the "accusatory part," which must "designate, the offenses charged." CPL § 100.15 (2). The second part is the "factual part," in which a witness must allege "facts of an evidentiary character supporting or tending to support the charges." CPL § 100.15 (3). Section 100.40 (1)(c) contains a further requirement that the factual part contain "[n]on-hearsay allegations . . . establish[ing], if true, every element of the offense charged and the defendant's commission thereof." See also CPL § 100.15 (3) (summarizing section 100.40 as requiring that every element of the charge be "supported" by non-hearsay allegations).
Contrary to the defendant's argument, the Criminal Procedure Law does not require that each element of the charged crime be specified or in some way referred to in the factual part of the accusatory instrument. Instead, the factual part must contain allegations that "establish" each element of the offense. CPL § 100.40 (1)(c). The Criminal Procedure Law does not dictate the manner in which the elements of the offense must be "establish[ed]" through the factual allegations.
At issue here is whether the non-hearsay factual allegations in this case "establish" that the defendant "intended to use [the dagger] unlawfully against another." To answer this question, the Court cannot ignore the existence of a statutory provision that directly addresses this issue. Penal Law § 265.15 (4) states that the mere "possession by any person of any dagger" provides "presumptive evidence of intent to use the same unlawfully against another." In other words, Penal Law § 265.15 (4) permits the People to demonstrate the defendant's intent under Penal Law § 265.01 (2) merely by making a proper factual allegation of possession.
It is not disputed that the People have alleged such possession through their non-hearsay allegation that the defendant had a dagger in his pocket. Section 265.15 (4) in turn unequivocally directs that such possession constitutes "evidence" of the defendant's intent to use the dagger unlawfully against another. Taken together, these provisions allow the People to "establish" the element of intent solely through the allegation of possession. While the defendant ultimately will have the opportunity to rebut this presumption of his intent at trial see, e.g., People v. Rodriguez, 152 Misc.2d 512, 515 (Sup.Ct. Queens Cty. 1991), the enactment of section 265.15 (4) means that at this stage of the proceedings possession by itself is sufficient evidence to show intent. As a result, the People need do nothing more than allege possession of the dagger in order to establish the element of intent.
Examining this issue from a different perspective, it is difficult to imagine what the People could do to cure the alleged defect in the accusatory instrument in an instance, such as here, where they rely solely on the statutory presumption to demonstrate intent. The statutory presumption cannot properly be included in the accusatory part of the instrument since this part is to contain only the "offense charged," CPL § 100.15, and the statutory presumption is not itself an "offense."
Nor could the police officer make a direct allegation in the factual portion of the instrument that the defendant had the requisite intent where he has no personal knowledge of such intent. Indeed, had he done so, the defendant could have argued that his allegation should be struck on this ground. In the absence of a confession, there is usually no direct proof of a defendant's intent. Instead, the People must prove facts that provide circumstantial evidence of such intent. See, e.g, People v. Hall, 196 A.D.2d 792 (1st Dep't), appeal denied, 82 N.Y.2d 850 (1993); People v. Taylor, 190 A.D.2d 628 (1st Dep't), appeal denied, 81 N.Y.2d 1020 (1993);accord People v. Mackey, 49 N.Y.2d 274, 279, (1980) ("intent is subjective, and must be established by proof of defendant's conduct and other facts and circumstances"). Here, the officer has provided the circumstantial evidence of intent by swearing on personal knowledge to the only underlying fact required by the statutory presumption: the defendant's possession of the dagger.
The defendant correctly notes that New York Jurisprudence, Second Edition states broadly that an indictment charging criminal possession of a weapon is insufficient where "it fails expressly to allege that the person had the intent to use the weapon unlawfully against another." N.Y Jur.2d, Vol 35B, § 5005 (1995). This statement, however, does not bar the instant prosecution because the treatise leaves open the possibility that an accusatory instrument may be sufficient where the allegation is made in the charging portion of the instrument. In addition, the treatise relies principally on a case, People v. Bahamundi, 99 A.D.2d 534 (2d Dep't 1984), that did not involve the statutory presumption. In Bahamundi, the Second Department held that an indictment charging Penal Law § 265.01 (2) must be dismissed where the People had failed to allege intent to use a knife unlawfully and had charged only that the defendant possessed a knife. Bahamundi, however, makes no reference to Penal Law § 265.15 (4) — presumably because the statutory presumption does not apply to a mere "knife" but only to a "dangerous knife." See People v. Rivera, 182 Misc.2d 244 (Crim.Ct. N.Y. Cty. 1999). Inasmuch as the presumption was not available to supply the missing element of intent, Bahamundi offers us no guidance in a case, such as this one, that relies on the presumption.
The other case cited by the treatise, People v. Trudeau, 24 N.Y.S.2d 34 (Franldin Co. Ct. 1940), supports the defendant's position. For the reasons stated in this opinion, however, the Court respectfully disagrees with its holding.
Moreover, consistent with the reasoning of this Court, one case in the Appellate Term of the Second Department held that, even where there was no applicable statutory presumption, an accusatory instrument need not allege intent in the factual part but need only do so in the accusatory part. See People v. Leiner, NYLJ October 15, 1997, at p. 34, col. 5 (App. Term. 2d 11th Jud. Dists.), appeal denied, 91 N.Y.2d 894 (1994). In Leiner, the court concluded that it was not necessary to repeat an allegation of intent in the factual part because intent "is an operation of the mind and cannot be the subject of a non-hearsay evidentiary allegation. It is necessary only that there be alleged evidentiary facts from which intent can be inferred." Id.
For these reasons, the motion to dismiss is denied.