Opinion
No. 2015NY066468.
03-22-2016
The PEOPLE of the State of New York v. Rodney MONROE–FRANCIS, Defendant.
Paul Mezan, ADA, N.Y. County, for the People. Cody Warner, Esq., Legal Aid Society, for the defendant.
Paul Mezan, ADA, N.Y. County, for the People.
Cody Warner, Esq., Legal Aid Society, for the defendant.
HEIDI C. CESARE, J.
Defendant, charged in a four count information with criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ), criminal possession of knives or dangerous instruments (Administrative Code of the City of New York § 10–133[b] ), unlawful solicitation in the subway (21 NYCRR 1050.6 [b][2] ), and blocking free movement in a transit facility (21 NYCRR 1050.7 [j][4] ), moves to dismiss counts one and two for facial insufficiency (CPL 100.40 and 170.30 ). For the reasons stated below defendant's motion is DENIED. Defendant's remaining motions are addressed below.
In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.
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A. The Allegations
On October 12, 2015, at about 1:30 p.m., a police officer observed defendant standing in front of the turnstiles in the subway station at Union Square East and East 16th Street in New York County. Over the course of about five minutes, the officer observed the defendant approach four people and ask them for a swipe at the turnstiles. The defendant's conduct prevented people from freely exiting and entering the subway system. Shortly thereafter, the officer found a kitchen knife with an approximately seven inch blade inside defendant's backpack. Defendant told the officer, “I use it for protection.”
B. Procedural History
Defendant was arraigned on a four count misdemeanor information on October 12, 2015. The court released defendant on his own recognizance, set a motion schedule and adjourned the case to December 8, 2105. On October 14, 2015, defendant timely filed his omnibus motion including the instant motion to dismiss counts one and two for facial insufficiency. On December 8, 2015, the parties appeared before the court. The People served and filed their response and a Voluntary Discovery Form. The court adjourned the case to February 1, 2016 for the court's decision on defendant's motions. On February 1, 2016, the parties appeared before the court and the court asked the parties to submit additional briefing addressing, in particular, People v. Spry (50 Misc.3d 1208[A] [Crim Ct, New York County 2016] ) and People v. McCain (50 Misc.3d 132[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ).
C. Facial Sufficiency
To be facially sufficient, an information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40[1][b], [c] ; People v. Alejandro, 70 N.Y.2d 133 [1988] ). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v. Jackson, 18 NY3d 738, 741 [2012] ; see CPL 100.40[1][c] ). An information is sufficient where it provides the accused with factual allegations sufficient to prepare a defense and is adequately detailed to prevent a defendant from being tried twice for the same offense (People v. Kalin, 12 NY3d 225, 230 [2009] ).
D. The Reasonable Cause Standard
Reasonable cause to believe that a person has committed an offense “exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10[2] ). The measure of “reasonable cause” is the equivalent of the familiar constitutional standard called “probable cause” (People v. Johnson, 66 N.Y.2d 398, 402, n. 2 [1985] ). For either to exist, the evidence must be strong enough to support a reasonable belief that it is more probable than not that a defendant committed a crime (People v. Mercado, 68 N.Y.2d 874, 877 [1986] ; People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] [“conduct equally compatible with guilt or innocence will not suffice”] ).
E. Penal Law § 265.01(2) is sufficiently plead.
A person is guilty of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ) when “[h]e or she possesses any ... dangerous knife ... with intent to use the same unlawfully against another.” Further, “[t]he possession by any person of any ... dangerous knife ... is presumptive evidence of intent to use the same unlawfully against another” (Penal Law § 265.15[4] ). The term “dangerous knife” has no statutory definition (In re Antwaine T., 23 NY3d 512, 516 [2014] ). The Court of Appeals, however, has held that the term “dangerous knife” connotes a knife which under “the circumstances of its possession may permit a finding that on the occasion of its possession it was essentially a weapon rather than a utensil” (Matter of Jamie D., 59 N.Y.2d 589, 593 [1983] ).
Here, the People's theory is that the allegations establish reasonable cause to believe that defendant's knife was a “dangerous knife” and that defendant possessed the knife with intent to use it unlawfully against another person. Defendant contends that the information is facially insufficient because the defendant's statement that he possessed the knife for the lawful purpose of self-defense is insufficient to establish the intent element. Defendant further contends that the presumption of intent to use unlawfully under Penal Law § 265.15(4) does not apply to kitchen knives, and alternatively, that this case is indistinguishable from Spry where this court granted a motion to dismiss for facial insufficiency.
The allegation that the officer found a seven inch bladed kitchen knife in defendant's backpack shows possession. Defendant's statement that he carried the knife for self-protection shows that he, himself, viewed the knife as a weapon and not as a mere utensil. Defendant's regard of his own knife as a weapon and not a mere utensil means that, under the Jamie D. criteria, defendant's knife was a “dangerous knife.” Defendant's possession of a dangerous knife triggers the presumption of intent to use unlawfully under Penal Law § 265.15(4). The presumption alone is prima facia evidence of the elemental fact of intent to use unlawfully (People v. Leyva, 38 N.Y.2d 160, 169 [1975] ). Like all statutory presumptions in New York, however, “[t]he presumption of unlawful intent under Penal Law § 265.15(4) ... is a permissive presumption, meaning that it allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof” (People v. Galindo, 23 NY3d 719, 723 [2014] [internal quotes and citations omitted] ).
When a court is called to evaluate the facial sufficiency of a misdemeanor information the court is obliged to assume the factual allegations are true and engage in an evaluation of the collective weight and persuasiveness of the alleged facts and circumstances to determine whether reasonable cause exists to establish each essential element of the charged offense (CPL 70.10[b], 100.40[1][b], [c] ). Here, the collective weight of the allegations permits a finding that reasonable cause exists to believe that defendant had the intent to use the knife unlawfully against another (cf. People v. Spry, 50 Misc.3d 1208[A] [Crim Ct, New York County 2016] [holding that the collective weight of the allegations did not support a finding of reasonable cause] ). At the time of his arrest defendant was engaged in unlawful activity in a subway station. He was standing in front of the subway station turnstiles, begging people for “swipes” and blocking the way of people coming in and out of the station. While engaged in this activity, defendant possessed a large knife with a seven inch blade in his back pack. When questioned by a police officer, defendant told the officer that he carried the knife to protect himself. On these allegations, the court will not infer that defendant's intent was to use the knife solely for the purpose of self-defense. In addition to these allegations, the People may rely on the statutory presumption of intent to use unlawfully against another under Penal Law § 265.15(4). Taken collectively, defendant's begging in the subway station, defendant's interference with other persons in the subway station, defendant's possession of a large knife with a seven inch blade, defendant's statement to the police officer, and the statutory presumption establish reasonable cause to believe defendant had the intent to use the knife unlawfully against another.
Upon review, the court is further satisfied that the instant case may be distinguished on the facts from People v. Spry (50 Misc.3d 1208[A] [Crim Ct, New York County 2016] ) and People v. McCain (50 Misc.3d 132[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ).
For the foregoing reasons the Court finds that the allegations in the information give reasonable cause to believe that defendant possessed a dangerous knife and that he had the intent to use the same unlawfully against another person. Defendant's motion to dismiss count one of the information is denied.
F. Administrative Code § 10–133(b) is sufficiently plead.
The Administrative Code of the City of New York § 10–133(b), provides that, in New York City, the mere possession, in any public place, street, or park, of a knife with a blade greater than four inches is unlawful, unless the possession falls within one of the exceptions provided by Administrative Code § 10–133(d). Administrative Code § 10–133(d) provides, “The provisions of subdivisions b and c of this section shall not apply to (1) persons in the military service of the state of New York when duly authorized to carry or display knives pursuant to regulations issued by the chief of staff to the governor; (2) police officers and peace officers as defined in the criminal procedure law; (3) participants in special events when authorized by the police commissioner; (4) persons in the military or other service of the United States, in pursuit of official duty authorized by federal law; (5) emergency medical technicians or voluntary or paid ambulance drivers while engaged in the performance of their duties; or (6) any person displaying or in possession of a knife otherwise in violation of this section when such knife (a) is being used for or transported immediately to or from a place where it is used for hunting, fishing, camping, hiking, picnicking or any employment, trade or occupation customarily requiring the use of such knife; or (b) is displayed or carried by a member of a theatrical group, drill team, military or para-military unit or veterans organization, to, from, or during a meeting, parade or other performance or practice for such event, which customarily requires the carrying of such knife; or (c) is being transported directly to or from a place of purchase, sharpening or repair, packaged in such a manner as not to allow easy access to such knife while it is transported; or (d) is displayed or carried by a duly enrolled member of the Boy or Girl Scouts of America or a similar organization or society and such display or possession is necessary to participate in the activities of such organization or society.”
Defendant contends that the information is facially insufficient because it fails to allege that none of the exceptions apply. The People contend that these exceptions are defenses that need not be negated in the accusatory instrument.
Essential allegations are generally determined by the statute defining the crime. Where the defining statute contains an exception, the People, generally, must plead the absence of the exception in the accusatory instrument. (People v. Santana, 7 NY3d 234, 236 [2006] ; People v. Kohut, 30 N.Y.2d 183, 187 [1972] ). However, where 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 [App Term, 2d Dept 2005] ).
Here, the various defenses are defined in a separate and subsequent subdivision (Administrative Code § 10–133[d] ) from the subdivision defining the charged violation (Administrative Code § 10–133[b] ). As a matter of common sense and reasonable pleading, it is clear that the enacting body's intent was to create a “proviso” that the accused could raise as a defense at trial (Sylla at 13). Further, it would be impracticable and unreasonable to require the prosecution to negate by pleading all of the defenses listed in subdivision (d). Whether a defendant's conduct falls within one of the many possible exceptions listed in subdivision (d) is likely “uniquely within his knowledge and, as a practical matter, uniquely within his capacity to prove” (People v. Torres, 47 Misc.3d 24 [App Term, 2d Dept, 11th & 13th Jud Dists 2015] ).
For the foregoing reason, the court finds that the exceptions listed in Administrative Code § 10–133(d) are provisos which need not be negated in an accusatory instrument charging a violation of Administrative Code § 10–133(b). The allegations in the complaint are sufficient to show that defendant possessed a knife with a blade exceeding four inches, and that he possessed a knife in a public place, to wit, a subway station. Accordingly, defendant's motion to dismiss count two is denied.
G. Defendant's remaining motions
Defendant's motion for a Mapp/Huntley/Dunaway pretrial hearing is granted.
Defendant's motion to preclude evidence of unnoticed statement or identification testimony is granted pursuant to CPL 710.30(3).
Defendant's motion for a Sandoval hearing is reserved to the trial part.
Defendant's motion for an extension of time to file additional motions is denied, subject to the provisions of CPL 255. 20(3).
This constitutes the decision and order of the court.