People v Ocasio (Alexis)

[*1] People v Ocasio (Alexis) 2015 NY Slip Op 50929(U) Decided on June 19, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 19, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
15-164

The People of the State of New York, Appellant,

against

Alexis Ocasio, Defendant-Respondent.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Steven J. Hornstein, J.), dated February 25, 2014, which granted defendant's motion to dismiss the accusatory instrument for facial insufficiency.

Per Curiam.

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 AD2d 842, 844 [1985]; see People v Schoonmaker, 40 AD2d 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 NY 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 I concur I concur
Decision Date: June 19, 2015