Opinion
570493/15
03-19-2018
The PEOPLE of the State of New York, Respondent, v. Donald NORTON, Defendant–Appellant.
Legal Aid Society, Criminal Appeals Bureau, New York City (Jonathan Garelick of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Frank Glaser of counsel), for respondent.
Legal Aid Society, Criminal Appeals Bureau, New York City (Jonathan Garelick of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Frank Glaser of counsel), for respondent.
PRESENT: Ling–Cohan, J.P., Gonzalez, Edmead, JJ.
Per Curiam.
Judgment of conviction, (Laurie Peterson, J.), rendered March 12, 2015, affirmed. In view of defendant's knowing waiver of his right to prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement (see People v. Dumay , 23 N.Y.3d 518, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ). So viewed, the accusatory instrument was jurisdictionally valid, since it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of criminally possessing a hypodermic instrument (see Penal Law § 220.45 ). The accusatory instrument recited that at a specified time and location, police recovered "four hypodermic needles from defendant's backpack" and that defendant stated that he uses the needles "for medical reasons and for heroin."
Contrary to defendant's contention, the accusatory instrument was not required to allege that his possession of the hypodermic needles was unlawful pursuant to Public Health Law [PHL] § 3381. Although Penal Law § 220.45 specifies that "[i]t shall not be a violation of this section when a person obtains and possesses a hypodermic syringe or hypodermic needle pursuant to [PHL § 3381 ]," we do not believe that the Legislature intended to require the People to negate each of the lawful conditions specified in section 3381 in every accusatory instrument charging criminal possession of a hypodermic instrument pursuant to Penal Law § 220.45. Unlike a true exception, the statutory language excludes certain conditions only through reference to regulations found outside the statute, here the PHL (see People v. Kohut , 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 [1972] ), and the PHL otherwise provides that in a criminal action or proceeding "brought for the enforcement of any provision of this article, it shall not be necessary to negate or disprove any exception, excuse, proviso or exemption contained in this article, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the person claiming its benefit" (PHL § 3396[1]; see also William C. Donnino, Practice Commentary, McKinney's Cons. Laws of NY, Book 39, Penal Law 220.00, p. 19–20; see also People v. Strong , 47 A.D.2d 798, 799, 365 N.Y.S.2d 310 [1975], affd 42 N.Y.2d 868, 397 N.Y.S.2d 779, 366 N.E.2d 867 [1977] [under prior version of Penal Law § 220.45"defendant ha[d] the burden of establishing by a preponderance of the evidence ... that his ‘possession’ of the hypodermic syringe and hypodermic needle were for a lawful purpose"] ).
Furthermore, the facts surrounding defendant's lawful possession of the instrument are "peculiarly and almost exclusively within the defendant's firsthand knowledge, with the details not readily available to the People" ( People v. D'Amato , 12 A.D.2d 439, 444, 211 N.Y.S.2d 877 [1961] ; see People v. Strong , 47 A.D.2d at 799, 365 N.Y.S.2d 310 ). Thus, the requirements of "common sense and reasonable pleading," ( People v. Davis , 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ), warrant the treatment of the PHL § 3381 conditions for lawful possession of a hypodermic instrument as provisos to be raised as a defense by a defendant, rather than as exceptions to be pleaded and proved by the People (see 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 Cons. Laws of NY, Book 1, Statutes, § 211).