Opinion
No. 2015NY041954.
01-11-2016
The PEOPLE of the State of New York v. Javon SPRY, Defendant.
Fredric Bennett, Esq., Legal Aid Society, for defendant. Kistian Krober, Esq., Assistant District Attorney, New York County.
Fredric Bennett, Esq., Legal Aid Society, for defendant.
Kistian Krober, Esq., Assistant District Attorney, New York County.
HEIDI C. CESARE, J.
Defendant, charged with one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ), moves to dismiss the information for facial insufficiency. For the reasons stated below defendant's motion is GRANTED.
In evaluating defendant's motion, the court has considered all submissions by the parties, all documents inthe court file, and all relevant cases and statutes.
A. Allegations
Defendant is charged with one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ). A person is guilty of criminal possession of a weapon in the fourth degree when he "possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another" (Penal Law § 265.01[2] ). According to the information herein, on June 17, 2015 at 4:25 p.m., near 1968 First Avenue in New York County, a police officer "took a knife from the floor of defendant's car." When the officer asked about the knife, defendant told the officer, "It's dangerous out here. I gotta protect myself." The information offers no additional factual allegations: nothing as to the appearance or condition of the knife; nothing as to its placement in the car; nothing as to defendant's behavior; and nothing as to how the officer came to find the knife.
B. Discussion
The questions presented here are whether the allegations—that an officer found a knife on the floor of defendant's car and that defendant made a statement indicating that he possessed the knife for self-protection—establish reasonable cause to believe (1) that defendant knowingly possessed a "dangerous knife" and (2) that he possessed the knife with the intent to use it unlawfully against another. Defendant contends that the allegations are insufficient to establish reasonable cause to believe that he had the intent to use the knife unlawfully against another. The People, citing People v. Almodovar, 62 N.Y.2d 126, 130 [1984], respond that defendant may not avoid the criminal charge by claiming that he possessed the weapon for self-protection.
1. Facial Sufficiency in General
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][a]-[c] ; see alsoPeople v. Alejandro, 70 N.Y.2d 133 [1988] ; People v. Dumas, 68 N.Y.2d 729 [1986] ; People v. Case, 42 N.Y.2d 98 [1977] ). A court reviewing for facial insufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (CPL 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747 [2012] ). Allegations are sufficient for pleading purposes where they provide adequate notice to enable a defendant to prepare a defense and protect against double jeopardy (People v. Kasse, 22 NY3d 1142 [2014] ). That other, innocent inferences could possibly be drawn from the facts is irrelevant at this pleading stage inquiry (People v. Deegan, 69 N.Y.2d 976, 979 [1987] ).
2. 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] ). "Reasonable cause to believe that a person has committed an offense" focuses upon the issue of whether the evidence is of sufficient weight and persuasiveness to establish a reasonable likelihood a defendant committed the offense (Peter Preiser, Practice Commentary, McKinney's Consolidated Laws of New York Annotated, CPL 70.10 ). 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 (see People v. Mercado, 68 N.Y.2d 874, 877 [1986] ). When "evidence or information which appears reliable discloses facts or circumstances" (CPL 70.10[b] ) which favor equally guilt or innocence the reasonable cause standard is not met (People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] ["conduct equally compatible with guilt or innocence will not suffice"] ).
3. Knowing possession of a dangerous knife is sufficiently plead.
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, as used in the statute, 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] ). In order to assess the information for facial sufficiency the court must assume the allegations are true and draw reasonable inferences therefrom (People v. Jackson, 18 NY3d 738, 747 [2012] ). Here, the sole allegations are that an officer found a knife on the floor of defendant's car and that defendant made a statement indicating that he possessed the knife for self-protection. For facial sufficiency analysis, the court accepts these allegations as true. From defendant's statement, the court may reasonably infer that defendant knew he had the knife in his car, and that he regarded his knife as a weapon and not as a utensil. For these reasons, the court finds that the first element of the offense—knowing possession of a dangerous knife—is sufficiently plead.
4. Intent to use the knife unlawfully against another is not sufficiently plead.
By establishing possession of a "dangerous knife", the People are entitled to the statutory presumption that defendant intended to use the knife unlawfully against another (Penal Law § 265.15[4] ). The presumption alone is sufficient to establish reasonable cause to believe that defendant possessed the knife with intent to use unlawfully against another (People v. Leyva, 38 N.Y.2d 160, 169 [1975] ). The presumption "allows, but does not require, the trier of fact to accept the presumed fact" (People v. Galindo, 23 NY3d 719, 723 [2014] ). The presumption of unlawful intent under Penal Law § 265.15(4), like all statutory presumptions in New York, is a permissive presumption (People v. McKenzie, 67 N.Y.2d 695, 696 [1986] ), which may be extinguished by other facts (see e.g., People v. Edwards, 39 AD3d 1078, 1080 [3rd Dept.2007] ["bare presumption" outweighed by "competing inference ... that the dagger was kept for self-defense, as a means of protection against an intruder"]; People v. Bell, 158 A.D.2d 697, 698 [2d Dept 1990] [presumption outweighed by other evidence that "kitchen steak knife" was possessed for lawful purpose of self-defense]; People v. Santiago, 61 A.D.2d 801, 801 [2d Dept 1978] [presumption outweighed by other evidence that baseball bat was possessed with lawful intent] ).
Also pertinent here is Penal Law § 35.15 which provides that a person may use physical force to defend himself or a third person, and his conduct, which would otherwise constitute an offense, is simply not criminal (see People v. McManus, 67 N.Y.2d 541, 545–46 [1986] ; People v. Padgett, 60 N.Y.2d 142, 145 [1983] ). The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful. (See People v. Taylor, 177 N.Y. 237, 245 [1904] ). Thus, "if defendant intended to use the knife solely in self-defense, he would not be guilty of the crime charged" (People v. Richards, 22 Misc.3d 798, 803 [Crim Ct, New York County 2008] ).
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The presumption, however, must be taken "collectively" with the other "facts and circumstances" of the case in order to determine whether it is "reasonably likely" that defendant possessed the knife with intent to use it unlawfully against another (CPL 70.10[b] ). The other circumstance of this case is, specifically, defendant's statement to the police officer that he possessed the knife for the purpose of self-protection. Under the spare allegations of the instant information, the court finds it reasonable to infer that defendant meant what he said: that he had a knife in his car in case he needed to protect himself from danger. Here, the statutory presumption of intent to use unlawfully, and the competing inference that defendant's intent was to use the knife for the lawful purpose of self-protection are of equal and opposite strength (cf. People v. Richards, 22 Misc.3d 798 [Crim Ct, New York County 2008] [in addition to the presumption based on defendant's admission that he possessed a knife for self-protection, other allegations were defendant was drunk and aggressive while in possession of the unsheathed knife] ).
When facts and circumstances point equally toward guilt and innocence, the reasonable cause standard is not met (People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] ["conduct equally compatible with guilt or innocence will not suffice"]; People v. David, 44 Misc.3d 1212[A] [Crim Ct, New York County 2014] ["when the evidence is in equipoise ... there can be no finding of reasonable cause or probable cause"] ). As the facts and circumstances in the present case favor, equally, guilty intent and innocent intent, reasonable cause to believe guilty intent is not established. For these reasons, the court finds that the second element of the offense—possession with the intent to use unlawfully against another—is not sufficiently plead.
The People invoke People v. Almodovar (62 N.Y.2d 126, 130 [1984] ) which held, "a person either possesses a weapon lawfully or he does not and he may not avoid the criminal charge by claiming that he possessed the weapon for his protection" in their response to defendant's motion. Almodovar and the oft cited, subsequent case, People v. Pons (68 N.Y.2d 264, 267 [1986] ["there are no circumstances when justification ... can be a defense to the crime of criminal possession of a weapon"] ), involved firearms which are illegal per se. Here, the court is considering a knife whose mere possession is not unlawful absent evidence that the possessor intended to use the knife unlawfully against another (People v. Richards, 22 Misc.3d 798, 804 [Crim Ct, New York County 2008] ; see also, CJI2d[NY] Penal Law art 265, Intent to Use Unlawfully and Justification ["The use of a (dangerous knife) to engage in conduct that is justifiable under the law is not unlawful. Thus, an intent to use a (dangerous knife) against another justifiably is not an intent to use it unlawfully."] ). The Almodovar/Pons rule means, simply, that a defendant charged with criminal possession of a weapon will not be entitled to a jury instruction that the People must disprove justification beyond a reasonable doubt (Richards at 806; see also Jackson v. Edwards, 296 F Supp 2d 292, 304 [EDNY 2003] [J. Weinstein] aff'd, 404 F.3d 612 [2d Cir.2005] ). A defendant charged with criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ) is nonetheless entitled to be prosecuted by an information which gives reasonable cause to believe that he possessed the knife with intent to use it unlawfully against another (Alejandro at 136). For these reasons, the People's reliance on Almodovar is unavailing.
C. Conclusion
As the intent element is insufficiently plead, the People have failed to establish reasonable cause to believe every element of the offense charged. Defendant's motion to dismiss the sole count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ) is granted. Sealing is stayed for thirty days.