People v Tinsley

[*1] People v Tinsley 2009 NY Slip Op 51772(U) [24 Misc 3d 1237(A)] Decided on July 8, 2009 Suffolk Dist Ct, First District Hensley, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2009
Suffolk Dist Ct, First District

People of the State of New York

against

Thomas V. Tinsley, Defendant.



2005SU29635



Christopher B. Abbott, Esq.

Attorney for Defendant

Reynolds, Caronia, Gianelli,

Hagney and LaPinta, LLP

35 Arkay Drive

Hauppauge, New York 11788

Thomas J. Spota, Esq.

District Attorney

of Suffolk County

by: Christopher Turk

Assistant District Attorney

400 Carleton Avenue

Central Islip, New York 11722

Paul M. Hensley, J.

ORDERED that this motion by the Defendant for an order to dismiss the accusatory instrument and other relief is denied.

Defendant is charged with Criminal Possession of a Weapon in the Fourth Degree in violation of New York State Penal Law §265.01 as a Class A Misdemeanor. It is alleged by misdemeanor information that Defendant at MacArthur Airport, 100 Arrival Avenue, Ronkonkoma, Town of Islip, County of Suffolk, State of New York on or about 1432 hours, possessed a Sig Sauer P239 40 caliber semi-automatic pistol, serial No.S4-48672: in that he possessed the firearm and while attempting to check the firearm, it was determined that he had no valid New York State Pistol License. The information is based upon personal knowledge of [*2]Detective Milton Gonzalez. An affidavit of Robert Damico, a security officer at MacArthur airport is also attached. The Court's file indicates that Defendant was arraigned September 5, 2005 and the matter was adjourned on each and every date at Defendant's request. Often it appears that Defendant was not required by multiple Judges of this Court to appear from Texas, his primary residence, as a plea in absentia was being negotiated. On March 2, 2009 nearly four years after the filing of the charge Defendant seeks omnibus relief including dismissal of the accusatory instrument pursuant to CPL §170.30(1)(a); speedy trial violations; dismissal pursuant to CPL §170.30(1)9f); dismissal in the interest of justice; a jury charge on justification; suppression of statement; preclusion of unnoticed statements; discovery; Sandoval and other relief. The prosecution opposes the motion as untimely and submits a crime laboratory report dated May 4, 2009 indicating the weapon was operable. For all the reasons which follow Defendant's motion is denied in its entirety.

TIMELINESS OF THE MOTION

The prosecution correctly points out that motions are generally to be made within forty-five days of arraignment and before commencement of trial or judgment of conviction. CPL §255.20(1); People v. Colon, 127 AD2d 678 (2d Dept.) aff'd 71 NY2d 410 (1988); People v. Moore, 201 AD2d 436 (1st Dept.), lv. denied 83 NY2d 874 (1994). While Defendant waited three years and eleven motions before filing this motion, it is not untimely. First, motions to dismiss on jurisdictional grounds may be raised at any time, even after trial. People v. Harper, 37 NY2d 96, 311 NYS2d 467 (1975). Moreover, Defendant's first counsel no longer practices law in the State of New York. Mr. Abbott, Defendant's present counsel was retained January 27, 2009 and timely served the within motion pursuant the oral orders of this Court. Good cause for the delay has been shown and is known to the parties based upon the prosecution of Defendant's prior counsel. The interest of justice also dictates that Defendant's application be addressed in an expeditious manner. Turning to the merits of Defendant's primary argument:

THE ACCUSATORY INSTRUMENT IS SUFFICIENT

Defendant alleges pursuant to CPL §100.40 that the accusatory instrument is insufficient. Contrary to the Defendant's position, the accusatory instrument is jurisdictionally sufficient. People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); People v. Casey, 95 NYS2d 354, 717 NYS2d 88 (2000); CPL §§100.15 and 100.40.

The information is just that, an information, based upon personal knowledge of Detective Milton Gonzalez and is supported by the affidavit of Robert Damico and a laboratory report dated May 4, 2009. Issues of what Detective Gonzalez knew and when he knew it are issues for trial. Defendant also maintains that the information is defective as it does not allege operability of the weapon. First, a laboratory report provided May 4, 2009 indicates that the weapon was operable. Moreover, the Court of Appeals in People v. Kalin, 12 NY3d 225; 878 NYS2d 653 (2009), on March 31, 2009 has clarified the law in this area. A misdemeanor information must set forth non-hearsay allegations, which, if true, establish every element of the offense charged [*3]and Defendant's commission thereof. However, a prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, 92 NY2d 680. The Court of Appeals emphasized in Kalin, so 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 citing People v. Konieczny, 2 NY3d 569, 575 (204) quoting People v. Casey, 95 NY2d at 360. While Kalin involved a drug possession case with no laboratory report, and a subsequent plea its rationale applies here to Mr. Tinsley. The information does not allege operability of the recovered weapon as required by New York State Penal Law §265.01(1). That issue, however, is for the finder of fact at trial. People v. Fana, 23 Misc 3d 114, April 23, 2009, People v. Longshore, 86 NY2d 851, 633 NYS2d 475 (1995). A laboratory report has been filed which indicates the weapon was found to be operative and the information itself describes the firearm in great detail. As such, the Defendant has been given sufficient notice to prepare a defense and the information is adequately detailed to prevent the Defendant from being tried twice for the same offense.

SPEEDY TRIAL

Since June 23, 2005 Defendant on each and every court date consistently waived speedy trial rights under CPL §30.30 by continuously seeking adjournments. As such, no time is chargeable to the People.

LEGAL IMPEDIMENTS TO DEFENDANT'S CONVICTION

Defendant makes a strong argument that he declared his weapon at the airport, holds a valid license in Texas and was in "transient status" pursuant to the Transportation Security Administration, Department of Homeland Security's regulations concerning the acceptance and screening of passengers with firearms. Defendant's motion, however, is not supported by an affidavit of Defendant regarding the "transient status" of Defendant. As such, no legal impediments exist to Defendant's conviction.

DISMISSAL IN THE INTEREST OF JUSTICE

A Court may dismiss a misdemeanor complaint in furtherance of justice, pursuant to CPL §170.40(1), "when, even though there may be no basis for dismissal as a matter of law... such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant... would constitute or result in injustice". A dismissal in the interests of justice involves a sensitive balance between the individual and the State. (People v. Clayton, 41 AD2d 204, 342 NYS2d 106 [2nd Dept., 1973]). The "judicial discretion" to dismiss in the furtherance of justice should be "exercised sparingly" and only the rare case where there is a "compelling factor" which clearly demonstrates that continued prosecution would be an injustice. (People v. M.R., 43AD3d 1188, 841 NYS2d 799 [2nd Dept., 2007]; People v. Sherman, 35 AD3d768, 825 [*4]NYS2d 770 [2nd Dept., 2006]).

Upon the failure of a Defendant to make a prima facie showing of a right to dismissal in the interests of justice, the Court may summarily deny the motion without a hearing. (CPL §§170.45 and 210.45; People v. Thomas, 108AD2d 884, 485 NYS2d 579 [2nd Dept.]; People v. Schiessel, 104 AD2d 501; 479 NYS2d 249 [2nd Dept., 1984]). The statute set forth ten factors to be considered when determining a motion, pursuant to CPL §170.40, as follows:

(a)the seriousness and circumstances of the offense;

(b)the extent of harm caused by the offense;

(c)the evidence of guilt, whether admissible or inadmissible at trial;

(d)the history, character and condition of the defendant;

(e)any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f)the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g)the impact of dismissal upon the safety and welfare of the community;

(h)the impact of dismissal upon the confidence of the public in the criminal justice system;

(i)where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j)any other relevant fact indicating that a judgment of conviction would have no useful purpose

The Court need not recite an analysis of each of the factors in reaching it's determination; (People v. Gragert, 1 Misc 3d 646, 765 NYS2d 471 [Crim. Ct. New York County, 2003]; People v. Curtis, 2 Misc 3d 1003(A), 784 NYS2d 922, 2002 NY Slip Op 51717(U)[Crim. Ct. New York County, 2003]). Rather, the Court must consider individually and collectively each of the factors listed in CPL §170.40 and must, where dismissal is granted, state the reasons for the record. (People v. Berrus, 1 NY3d 535, 802 NE2d 1089, 770 NYS2d 691 [2003]).

The Defendant is a 53 year old father of a 21 year old daughter who is a university student in New Jersey. The Defendant resides in the State of Texas where he possesses a valid Texas concealed weapon's license. While in possession of the firearm (Defendant claims he accidentally brought the firearm with him), the Defendant traveled via automobile from the State of Texas to the State of New Jersey. After visiting with his daughter in New Jersey for four days*, the Defendant traveled from New Jersey to Islip, New York for the purposes of boarding a Southwest Airlines flight back to Texas. Upon arriving at the airport, the Defendant declared to a Southwest counter person that he is in possession of a firearm and attempted to check his firearm contained within a locked case. He was thereafter arrested by law enforcement. Although the Defendant claims that his livelihood and professional career would be adversely affected by a criminal conviction in this case, notwithstanding he has a misdemeanor conviction in his background, he fails to address the fact that the People have offered through plea [*5]negotiations a guilty plea to a violation.

The fact that a Defendant has minimal criminal record or an exemplary background is insufficient to justify dismissal in the interests of justice. (See, People v. Kelley, 141 AD2d 764, 529 NYS2d 855 [2nd Dept., 1988]; People v. Varela, 106 AD2d 339, 483

*The Court notes that there is no indication from the Defendant that he possessed a valid NJ firearm's license.

NYS2d 13 [1st Dept., 1984]; People v. Andrew, 78 AD2d 683, 432 NYS2d 252 [2nd Dept., 1980]). Further, that Defendant is licensed to carry a weapon in one state, but visited two states in which he is not licensed and drove through several others from Texas, does not factor in favor of dismissal. Moreover, the seriousness of having a firearm in an airport in a state in which Defendant is not licensed to carry it, strongly suggests that the interests of the public are best served by the continued prosecution of Defendant. (People v. Williams, 21 Misc 3d 1120A [2008], 2008 NY Slip Op 521124 [2008].

After consideration of Defendant's arguments and evaluating them against each factor set forth in CPL §170.40, this Court concludes the Defendant has failed to meet his burden of making a prima facie showing that dismissal of these charges would serve the interests of justice.

REQUEST TO CHARGE

Defendant requests to charge the jury on the defense of justification is denied as premature with leave to renew at the appropriate stage of trial.

REQUEST TO SUPPRESS STATEMENT

That branch of the motion seeking to suppress any statements made by the Defendant is granted to the extent that a Huntley hearing shall be conducted, on consent, to determine the admissibility of Defendant's statements on the People's direct case, as well as on cross-examination in the event the Defendant chooses to testify. (See, CPL §710.23, 710.6(3)(b); People v. Weaver, 49 NY2d 1012; People v. Maerling, 64 NY2d 134). The date and time of the hearing shall be determined at the next scheduled Court appearance.

DISCOVERY

That branch of the Defendant's motion seeking to compel the People to comply with CPL §240.20 is denied as moot. The People have submitted discovery within their affirmation in opposition.

SANDOVAL

That branch of the Defendant's motion seeking to preclude the People from cross-examining him regarding prior bad acts in the event he testifies is granted to the extent that [*6]a Sandoval/Molineux hearing shall be held immediately prior to trial, and the People at that time shall provide the Defendant with a list of the uncharged criminal, vicious and immoral acts, if any, as required by CPL §240.43.

The Defendant's request for leave to make additional motions as may be appropriate is granted solely to the extent that any such request shall be considered by the Court upon a proper showing pursuant to CPL Articles 255 and 710.

Dated:J. D. C.