Opinion
No. 15–164.
06-19-2015
The PEOPLE of the State of New York, Appellant, v. Alexis OCASIO, Defendant–Respondent.
Opinion
Order (Steven J. Hornstein, J.), dated February 25, 2014, affirmed.
The accusatory instrument charging defendant with criminal possession of a weapon in the fourth degree (see Penal Law 265.01[1] ), was properly dismissed as facially insufficient. Since the mere possession of a per se weapon constitutes a violation of Penal Law 265.01(1), it must clearly appear that the item possessed answers the description of one of the prohibited instruments or weapons set forth in the statute (see People v. Visarities, 220 App.Div. 657 [1927] ). The item described in the underlying accusatory instrument-a “rubber-gripped, metal, extendable baton” is not one of the prohibited instruments or weapons set forth in the statute. Nor does the object constitute a “billy,” one of the objects prohibited. Though the term “billy” is not defined in the statute, the term is “strictly interpreted to mean a heavy wooden stick with a handle grip which, from its appearance, is designed to be used to strike an individual and not for other lawful purposes” (People v. Talbert, 107 A.D.2d 842, 844 [1985] ; see People v. Schoonmaker, 40 A.D.2d 1066 [1972] ). The “metal,” “extendable” object described in the accusatory instrument is not a billy (see People v. Phillips, 7 Misc.3d 1004[A], 2005 N.Y. Slip Op 50438[U] [County Ct, Lawrence County, 2005] ), and “does not fit the definition of a per se weapon as defined in Penal Law article 265” (People v. Dreyden, 15 NY3d 100, 104 [2010] ).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.