Opinion
08-12-2016
The PEOPLE of the State of New York v. Christian DUDLEY, Defendant.
Monica Narang, ADA, N.Y. County, for the People. Ying–Ying Ma Esq., Legal Aid Society, for the defendant.
Monica Narang, ADA, N.Y. County, for the People.
Ying–Ying Ma Esq., Legal Aid Society, for the defendant.
HEIDI C. CESARE, J.The defendant, charged in count one with criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ) and in count two with criminal possession of knives or dangerous instruments (Administrative Code of the City of New York § 20–133[b] ), moves for an order dismissing count one of information pursuant to Criminal Procedure Law §§ 170.30, 170.35and 100.40. For the reasons stated below, defendant's motion to dismiss count one is GRANTED. 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.
A. 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][b], [c] ; People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [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 N.Y.3d 738, 741, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ; see CPL 100.40 [1][c] ). Further, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ).
Reasonable cause to believe that a person has committed an offense Aexists 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, 497 N.Y.S.2d 618, 488 N.E.2d 439 [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, 508 N.Y.S.2d 419, 501 N.E.2d 27 [1986] ). When evidence or information which appears reliable discloses facts or circumstances “equally compatible with guilt or innocence”, the reasonable cause standard is not met (People v. Carrasquillo, 54 N.Y.2d 248, 254, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] ).
B. The Allegations
The allegations are that on February 23, 2016, at about 7:10 p.m., during a regular security check for an event at City College building, a police officer found a “dangerous knife” with an approximately six-inch blade inside defendant's backpack. When asked about the knife, defendant told the officer that he possessed the knife “for protection”.
C. Criminal possession of a weapon in the fourth degree
A person is guilty of criminal possession of weapon in the fourth degree when, “[h]e possesses any ... dangerous knife ... with intent to use the same unlawfully against another” (Penal Law § 265.01[2] ). Possession of “any ... dangerous knife ... is presumptive evidence of intent to use the same unlawfully against another” (Penal Law § 265.15[4] ). The offense has two essential elements as charged in the present case: (1) knowing possession of a dangerous knife and (2) possession with intent to use unlawfully against another. Defendant contends that factual allegations in the information are insufficient to establish that the knife possessed by defendant was “dangerous” or that his intent was to use the knife unlawfully against another.
1. Knowing possession of a dangerous knife is sufficiently plead.
The term “dangerous knife” has no statutory definition, “but in context a dangerous knife is a knife that may be characterized as a weapon' ” (People v. Campos, 93 A.D.3d 581, 582, 940 N.Y.S.2d 634 [1st Dept.2012], citing Matter of Jamie D., 59 N.Y.2d 589, 592, 466 N.Y.S.2d 286, 453 N.E.2d 515 [1983] ). A knife that has nonviolent uses “may nonetheless be determined to fall within the statutory prescription when the circumstances of its possession including the behavior of its possessor demonstrate that the possessor himself considered it a weapon” (Matter of Jamie D. at 591, 466 N.Y.S.2d 286, 453 N.E.2d 515 ).
Defendant's statement that he possessed the knife for protection permits a reasonable inference that defendant regarded this knife as a weapon and not as a mere utensil. Since defendant regarded his knife as a weapon, the knife is a “dangerous knife” under the rationale set forth in Matter of Jamie D. For these reasons, the court finds that the first element of the offense—knowing possession of a dangerous knife—is sufficiently plead.
2. Intent to use the knife unlawfully against another is insufficiently plead.
By sufficiently pleading possession of a “dangerous knife”, the People invoke the statutory presumption under Penal Law § 265.15(4) that defendant intended to use the knife unlawfully against another. 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, 379 N.Y.S.2d 30, 341 N.E.2d 546 [1975] ). This presumption, however, like all statutory presumptions in New York is a permissive presumption (People v. McKenzie, 67 N.Y.2d 695, 696, 499 N.Y.S.2d 923, 490 N.E.2d 842 [1986] ). The presumption “allows, but does not require, the trier of fact to accept the presumed fact” (People v. Galindo, 23 N.Y.3d 719, 723, 993 N.Y.S.2d 525, 17 N.E.3d 1121 [2014] ).
A finding that the presumption of intent to use unlawfully applies, however, is not the end of the court's inquiry. 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 allegations to determine whether reasonable cause exists (CPL 70.10[b], 100.40[1][b], [c] ). Here, the allegation of significance is that defendant told the arresting officer that he possessed the knife in his backpack “for protection.” In the absence of any aggravating facts and circumstances, the court finds it is reasonable to infer that defendant meant what he said, specifically, that his intention was to possess the knife for the lawful purpose of self-protection.
Also pertinent here is Penal Law § 35.15 which provides that a person may use physical force to defend himself, and his conduct, which would otherwise constitute an offense, is simply not criminal (see People v. McManus, 67 N.Y.2d 541, 545–46, 505 N.Y.S.2d 43, 496 N.E.2d 202 [1986] ; People v. Padgett, 60 N.Y.2d 142, 145, 468 N.Y.S.2d 854, 456 N.E.2d 795 [1983] ).
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Thus, the court must consider two competing inferences: unlawful intent by statutory presumption and lawful intent by reasonable inference. Notably, both inferences are drawn from the same allegation, affirmatively plead by the prosecution, that defendant told the officer he possessed the knife for protection. As the court sees no way to distinguish the relative strength of these inferences, the court finds that they are of equal and opposite strength (see, e.g., People v. Spry, 50 Misc.3d 1208[A], 2016 WL 122098 [Crim.Ct., New York County 2016] ). Further, the information offers no other allegations that tip the balance one way or the other. Since the facts and circumstances in the present case favor, equally, guilty intent and innocent intent, the reasonable cause standard is not met. For these reasons, the court finds that the second element of the offense—possession with the intent to use unlawfully against another—is insufficiently plead.
The People invoke People v. Almodovar, 62 N.Y.2d 126, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984) and People v. Pons, 68 N.Y.2d 264, 508 N.Y.S.2d 403, 501 N.E.2d 11 (1986) for the proposition that “there are no circumstances when justification ... can be a defense to the crime of criminal possession of a weapon” (Pons, at 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 ). Almodovar and Pons, however, both involved the unlawful possession of firearms. Some weapons, such as firearms, are illegal per se, regardless of intent, but a knife is not one of those weapons (see Penal Law §§ 265.01[2] and 265.03 ; People v. Campos, 93 A.D.3d 581, 940 N.Y.S.2d 634 [1st Dept.2012] ). Possession of a knife is only criminal when the possessor intends to use it unlawfully against another (see Penal Law § 265.01[2] ). For this reason, the People's reliance on Almodovar and Pons is unavailing.
Upon review, the court is also satisfied that the present case may be distinguished on facts from People v. Edward, 51 Misc.3d 36, 29 N.Y.S.3d 82 (App.Term, 1st Dept.2016) [defendant charged with various offenses including trespass in the second degree]; People v. McCain, 50 Misc.3d 132 [A], 2015 WL 9694118 (App.Term, 2d Dept., 11th & 13th Jud.Dists.2015) [officer observed “razor knife” which could be activated to an open and unlocked position through force of gravity]; and People v. Richards, 22 Misc.3d 798, 869 N.Y.S.2d 731 (Crim.Ct., New York County 2008) [defendant was drunk and aggressive while in possession of the unsheathed knife].
D. Conclusions
Defendant's motion to dismiss count one of the information charging criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ) is granted.
Defendant's motion for a Mapp/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).