Opinion
829/08.
Decided April 17, 2008.
The attorneys are: Theodore M. Herlich, Esq., for defendant, Nathan Sams.
ADA Michael Greenman, for the People.
Defendant's omnibus motion is disposed of as follows:
1.The motion for inspection and/or dismissal of the Grand Jury minutes is granted to the extent that the Court will examine the Grand Jury minutes in camera.
With respect to defendant's request that this Court resurrect Indictment Number 6219-06, which was superceded by the instant indictment, Indictment Number 829-08, in order to decide defendant's motion to dismiss with respect to the Indictment Number 6219-06, that motion is denied. As defendant notes in his motion papers, that indictment has been superceded by the instant indictment and the counts of the original indictment have been dismissed pursuant to CPL 200.80.
With respect to the motion to dismiss the instant indictment as improperly pleaded, it is also denied. An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime (see People v. D'Angelo, 98 NY2d 733, 734-35; People v. Iannone, 45 NY2d 589, 600). While no particular form is constitutionally mandated, an indictment must afford a defendant "fair notice of the charges made against him, so that he can prepare a defense and in order to avoid subsequent attempts to retry him for the same crime or crimes" ( People v. Wright, 112 AD2d 38, 39 [4th Dept. 1985] [dissenting opn.], rev'd on dissent 67 NY2d 749). It must allege that the defendant committed acts constituting every material element of the crime charged (see People v. D'Angelo, 98 NY2d, at 734-35; People v. Iannone, 45 NY2d, at 598-600; see also CPL 200.50 [a]). The elements of the offense are generally determined by the statute defining the offense ( People v. Kohut, 30 NY2d 183, 187). Generally, if an exception to the offense is contained within the statute defining the offense, the indictment must allege that the crime is not within the exception (see People v. Bradford, 227 NY 45; People v. Newell, 95 AD2d 815 [2nd Dept. 1983]; cf. People v. Rodriguez, 68 NY2d 674, rev'g for reasons stated in the dissenting opinion at the Appellate Division 113 AD2d 337, 343-348 [2d Dept. 1985]). "The incorporation by specific reference to the statute operates without more to constitute allegations of all the elements of the crime" (see People v. D'Angelo, 98 NY2d, at 735). However, the mere citation to the section of the Penal Law charged does not save an otherwise defective indictment (see People v. Colloca, 57 AD2d 1039, 1040 [4th Dept. 1977]).
Here, defendant was charged with violating Penal Law § 265.03 (3), which provides that:
A person is guilty of criminal possession of a weapon in the second degree when . . . such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in the person's home or place of business.
It is undisputed that this statute contains an exception for possession in one's home or place of business unless one has a prior conviction or an assault weapon. The indictment charged defendant as follows: "FIRST COUNT: THE GRAND JURY OF THE COUNTY OF NEW YORK, by this indictment, accuse the defendant of the crime of CRIMINAL POSSESSION OF A WEAPON IN THE SECOND DEGREE in violation of Penal Law § 265.03(3), committed as follows:
The defendant, in the County of New York, on or about November 15, 2006, possessed a loaded firearm, to wit: a pistol in violation of subdivision one of Penal law § 265.02." It is evident that the indictment failed to allege the exception provided in Penal Law § 265.03(3). Based on that failure, defendant argues that a material element of the charged crime was not alleged and the first count of the indictment was, therefore, jurisdictionally defective. It seems to this Court that defendant is asking the People to plead the exception by saying the "home or business exception is inapplicable in this case because defendant has previously been convicted of a felony. The Court disagrees with defendant's argument.
Where a defendant has been previously convicted of any crime, the possession of a loaded firearm is, per se, a class C felony ["criminal possession of a weapon in the second degree," Penal Law § 265.03(3)], regardless of whether the possessor possessed the firearm in his or her "home or place of business" (see Penal Law §§ 265.01(1); 265.02(1) and (4)]. There is no "exception."
The Court notes that defendant cites the case of People v. Lamont , 21 AD3d 1129 , 1133 [3rd Dept. 2005], lv. den. 6 NY3d 835). In Lamont, the Appellate Division, Third Department, held that the court charged the jury as defendant requested. The Third Department found that the court correctly determined that the "home or place of business" exception to possession of a loaded weapon under Penal Law § 265.02 (4) does not apply if the defendant has previously been convicted of a crime, in which case such possession is a felony (see Penal Law § 265.02 , referring to Penal Law § 265.02 [1]; Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 265, at 93). The indictment correctly noted that defendant fell within the subdivision (1) exception rendering the "home or place of business" exception inapplicable (compare People v Newell , 95 AD2d, at 816), and the jury was charged accordingly. Likewise, in this case, the indictment correctly notes that defendant fell within the subdivision (1) exception thus rendering the "home or place of business" exception inapplicable and thus, unnecessary to be charged since it is not an element of the crime charged. Accordingly, the People do not have the burden to plead and prove the exception; namely, that the possession took place in a place that was not the defendant's "home or place of business" ( People v. Rodriguez , 113 AD2d, at 343-348; People v. Ali , 36 NY2d 880 [1975]). By alleging the exception to the exception, namely, that defendant's possession of the loaded firearm was in violation of Penal Law § 265.02(1), the People satisfied their pleading requirement, defendant has all the notice he is entitled to in order to defend himself against the charge and to prevent being tried a second time for the same crime. Accordingly, the motion to dismiss Count One of the Indictment is denied. With respect to the second count of the Indictment, defendant argues that it is also jurisdictionally defective in that it does not say it is in violation of Penal Law § 265.01.
The Court finds that this Count also is not jurisdictionally defective. Count Two of the indictment charges defendant under Penal Law § 265.02(1) with third degree possession of a firearm. Penal Law § 265.02(1) states that
A person is guilty of criminal possession of a weapon in the third degree when: (1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one . . . of section 265.01, and has been previously convicted of any crime;. . . .
Penal Law § 265.01(1) states that
A person is guilty of criminal possession of a weapon in the fourth degree when: (1) He possesses any firearm. . . .
The Second Count of the indictment reads as follows: AND THE GRAND JURY AFORESAID, by this Indictment, further accuse the defendant of the crime of CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE, in violation of Penal Law § 265.02(1), committed as follows:
The defendant, in the County of New York, on or about November 15, 2006, possessed a firearm, to wit, a pistol.
The language used to charge this count tracts the language of Penal Law § 265.01(1) and is identical to committing fourth degree possession of a weapon as proscribed in Penal Law § 265.01(1), with the additional element of a previous criminal conviction. The Court notes that the term firearm' is defined in Penal Law § 265.00(3)(a) as "any pistol or revolver". The indictment charges defendant with possession of a firearm, to wit, a pistol. The People have also filed special information with respect to defendant's prior conviction. Thus, all the material elements of this Count were made out and the language pleading this Count was sufficient without the additional verbiage suggested by defendant. Accordingly, the motion to dismiss this Count is likewise denied.
2.The motion for a Payton-Huntley-Dunaway hearing is granted.
3. The motion to preclude the prosecution from introducing any testimony regarding an identification made of defendant for which the requisite notice was required and not given pursuant to CPL 710.30 is granted. 4. The motion for a Sandoval hearing is granted and is to be held immediately prior to jury selection. At that time the People are to disclose the prior immoral or criminal acts that they intend to introduce at trial. 5. The motion for a Bill of Particulars and Discovery is granted to the extent supplied by the People. However, if defendant believes that any response to his demand for Discovery or his request for a Bill of Particulars is inadequate, he may move to reargue within 10 days of the service of a copy of this Pretrial Decision and Order. The People are directed to preserve all evidence including electronically recorded matter and physical exhibits seized by law enforcement officials or their agents, and all notes, records memoranda and reports prepared by law enforcement officials or their agents, including all recorded police communications. 6. The People are reminded of their continuing obligation under Brady v. Maryland , 373 U.S. 83 (1963). 7. The motion to reserve the right to file additional motions is denied.