People v Delarosa

[*1] People v Delarosa 2010 NY Slip Op 50636(U) [27 Misc 3d 1209(A)] Decided on April 8, 2010 Criminal Court Of The City Of New York, New York County Gerstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2010
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Ramon Delarosa, Defendant.



2010NY004648



Cyrus Vance, District Attorney (Kareen Evans, Esq., of counsel), for the People.

Legal Aid Society, Benjamin West, Esq., of counsel for Defendant.

Michael Gerstein, J.

The issue here is whether Defendant can be charged with Possession of an Imitation Pistol in a complaint which alleges that the imitation pistol is silver and black in color, has an open barrel and "appears to look like an actual gun" but fails to allege that marks by which the manufacturer can be readily identified do not exist on the item.

Defendant is charged with Possession of an Imitation Pistol (AC § 10-131(g)), Consumption of Alcohol in a Public Place (AC § 10-125(b)), and Criminal Possession of Marihuana in the Fifth Degree (PL § 221.05).

In a pretrial omnibus motion, Defendant seeks an Order:

1)Dismissing the charge of Possession of an Imitation Pistol (AC § 10-131(g)) for facial insufficiency, pursuant to CPL §§ 170.30, and 170.35;

2)Suppressing any and all tangible evidence seized, or, in the alternative, granting a Mapp/Dunaway hearing;

3)Suppressing noticed statements allegedly made by Defendant, or, in the alternative, granting a Huntley hearing;

4)Precluding statements allegedly made by Defendant or any identification testimony which have not been noticed to Defendant, pursuant to CPL § 710.30(3);

5)Precluding the People from using at trial any evidence of Defendant's prior convictions or bad acts;

6)Granting a Bill of Particulars and Discovery and inspection, pursuant to CPL §§ 200.95(5), 100.45 and 240.40; [*2]

7)Reserving rights for further motions; and

8)Granting such additional relief as the Court deems just and proper.

The People filed a Response and Voluntary Disclosure Form ("VDF") dated March 8, 2010. The People filed a cross-motion for reciprocal discovery.

The Complaint, signed by Police Officer Pablo Best, states, in relevant part, that on January 15, 2010, inside of the 145 Street and St. Nicholas Ave. subway station in the County and State of New York:

Deponent states that deponent observed the defendant on the stairs at the above location, a public place. Deponent further states that the defendant was not participating in a block party, feast, or similar function, and defendant was drinking from an open container of Coors Light beer containing an alcoholic beverage Deponent further states that defendant stated in substance: I WAS DRINKING BEER TO TRY TO CLEAR MY HEAD.

Deponent further states that deponent recovered one (1) imitation pistol that is silver and black in color, has an open barrel and which appears to look like an actual gun, from the defendant's waistband. Deponent further states that deponent was able to identify said imitation pistol based upon deponent's training and experience. Deponent further states that defendant stated in substance: I HAVE A PISTOL ON MY WAISTBAND.

Deponent states that deponent recovered one (1) glassine containing marijuana from defendant's right hand.

Motion to Dismiss Possession of an Imitation Pistol Charge for Facial

Insufficiency

Defendant moves to dismiss the charge of Possession of an Imitation Pistol (AC § 10-131(g)) for facial insufficiency, pursuant to CPL §§ 170.30 and 170.35. Defendant does not dispute that the imitation pistol obtained by the police "substantially duplicates... an actual firearm." AC § 10-131(g). Defendant argues, however, that the complaint lacks sufficient factual allegations to support an inference that the item recovered from Defendant was in fact an imitation pistol of the kind prohibited by AC § 10-131(g). Specifically, Defendant claims that since the complaint fails to negate AC § 10-131(g)(1)(d), a clause of the statutory exception requiring that the toy or imitation firearm be legibly stamped with the name of the manufacturer, the People have not established each element of the charged offense. He therefore argues that the complaint is facially insufficient and the charge of Possession of an Imitation Pistol must be dismissed.

The People argue that the complaint alleges each element of the offense, and that it is therefore facially sufficient.

Simply put, the issue is whether the People allege sufficient facts to establish a violation of AC § 10-131(g) without specifically negating every clause of the statutory exception. The statute reads as follows: [*3]

g. 1. It shall be unlawful for any person to sell or offer for sell [sic], possess or use or attempt to use or give away, any toy or imitation firearm which substantially duplicates or can reasonably be perceived to be an actual firearm unless:

(a) the entire exterior surface of such toy or imitation firearm is colored white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink or bright purple, either singly or as the predominant color in combination with other colors in any pattern; or [emphasis added]

(b) such toy or imitation firearm is constructed entirely of transparent or translucent materials which permits unmistakable observation of the imitation or toy firearm's complete contents; and

(c) the barrel of such toy or imitation firearm, other than the barrel of any such toy or imitation firearm that is a water gun, is closed with the same material of which the toy or imitation firearm is made for a distance of not less than one-half inch from the front end of said barrel, and;

(d) such toy or imitation firearm has legibly stamped thereon, the name of the manufacturer or some trade name, mark or brand by which the manufacturer can be readily identified; and

(e) such toy or imitation or firearm does not have attached thereto a laser pointer, as defined in paragraph one of subdivision a of section 10-134.2 of this code.

In People v. Kohut, 30 NY2d 183, 282 NE2d 312, 331 NYS2d 416 (1972), the Court of Appeals stated that "[i]f the defining statute contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense " 30 NY2d at 187. See People v. 610 Video Store, Inc., 180 Misc 2d 458, 689 NYS2d 609 (Crim. Ct. NY Co. 1999) (exceptions to certain restrictions on adult establishments, contained within the statute defining the restrictions, are elements of the violation which must be pleaded in the complaint); People v. Santana, 7 NY3d 234, 851 NE2d 1193, 818 NYS2d 842 (2006) (where defendant was charged under PL § 215.50, second degree criminal contempt, a reference to exceptions in the context of "labor disputes" (as defined in section 753-a of the Judiciary Law) did not require that the People negate each and every possible exception in the complaint, but rather that any such exceptions constitute provisos that a defendant may raise at trial). In discussing People v. Santana, supra , the Court of Appeals emphasized that "[t]he main goal of the interpretative rules governing exceptions and provisos is to discover the intention of the enacting body." People v. Davis, 13 NY3d 17, 912 NE2d 1044, 884 NYS2d 665 (2009).

Former AC § 436-5.0(g), the predecessor to AC § 10-131(g), was enacted in 1955, and prohibited imitation pistols or revolvers. The purpose of the statute was "to prevent the sale, possession or use of models so closely copied from actual weapons as not to be readily discernible as toys." People v. Webb, 78 Misc 2d 253, 356 NYS2d 494 (Crim. Ct. NY Co. 1974), quoting 1 Proceedings of Council of City of NY, at 24 (1955). The statute contained an

exception, permitting toy guns which were manufactured "in colors other than black, blue, silver or aluminum, and further provided that the barrel of said toy or imitation pistol or revolver shall be closed " Former AC § 436-5.0(g).

This exception, incorporated into an earlier version of AC § 10-131 (g), was addressed in People v. Diaz, 147 Misc 2d 121, 554 NYS2d 802 (Crim. Ct. NY Co. 1990). In Diaz, as here, the defendant argued that since the complaint failed to negate each clause of the statutory [*4]exception, the complaint did not contain factual allegations sufficient to support every element of the charged offense. The court in Diaz rejected the defendant's argument that allegations which stated that the imitation pistol was black but failed to state that the barrel of the toy gun was closed were facially insufficient, focusing on the conjunctive nature of the exceptions, and holding that allegations which specifically negate one of the clauses are sufficient to remove the conduct from the statutory exception.

The language of AC § 10-131(g) was amended in 1999 by Local Law 58, strengthening the prohibition on toys which "substantially duplicat[e]" firearms.[FN1] In the Report of the New York City Council's Committee on Consumer Affairs in favor of adopting Local Law 58,[FN2] it was noted that the proposed amendments to the list of exceptions to AC § 10-131(g) would require that a toy gun be either "colored white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink or bright purple" or be "constructed entirely of transparent or translucent materials," in addition to the requirements of a closed barrel (specifically excluding water guns), a legibly stamped manufacturer name, and the absence of a laser pointer.

Accordingly, a complaint which describes a toy which "substantially duplicates...an actual firearm" must negate the clauses of the exception which discuss the color (or lack thereof) of the toy's exterior. It is not imperative that the People negate any of the remaining clauses, as they are not independently operative.

As illustrated above, the list of exceptions to AC § 10-131(g) appears within the statute itself. According to the rule in People v. Kohut, supra , the complaint must contain factual allegations which sufficiently negate the exceptions in order to establish each element of the offense. Here, where the complaint alleges that the imitation firearm was "silver and black in color," the exceptions contained in AC § 10-131(g)(a) and AC § 10-131(g)(b) have been [*5]sufficiently negated. See People v. Becker, 13 Misc 3d 492, 820 NYS2d 496 (Rochester City Ct. 2006) (allegations are sufficient where they "necessarily and categorically negate" the exceptions even if the exceptions are not specifically noted). Additionally, the allegation that the imitation firearm has an open barrel, though not necessary, further removes the alleged conduct from the statutory exceptions. Accordingly, the exceptions to AC § 10-131(g) have been sufficiently negated in the complaint. Defendant's motion to dismiss the charge of Possession of an Imitation Pistol as facially insufficient is denied.

Motion to Suppress Tangible Evidence

Defendant further argues that because he was arrested without probable cause, this evidence must be suppressed or a hearing granted to litigate the issues, citing Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) et. al.

The People state that they intend to offer certain tangible evidence at trial and that all such evidence was lawfully obtained. The People further submit that Defendant was arrested lawfully and controvert all allegations to the contrary.

The People intend to introduce at trial certain tangible evidence allegedly obtained from Defendant pursuant to his arrest. Defendant's request for a hearing to determine the admissibility of any tangible evidence allegedly seized, as well as the existence of probable cause for his arrest, is granted pursuant to Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961) and Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248,(1979) et al.

Motion to Suppress Statements

Defendant moves for suppression of any and all statement evidence, or, in the alternative, a hearing pursuant to People v. Huntley, 15 NY2d 72, 204 NE2d 179, 255 NYS2d 838 (1965). Defendant argues that any statements allegedly made were obtained in violation of his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, § 6 of the New York State Constitution, and were thus involuntary within the meaning of pursuant to CPL § 60.45. Defendant further argues that any statements allegedly made were obtained prior to advisement of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 84 S. Ct. 1774 (1966). Thus, Defendant argues, the statements must be suppressed, or a Huntley hearing granted to litigate the issues.

The People counter that they intend to offer in their direct case at trial a statement that Defendant allegedly made to a law enforcement officer, and submit that Defendant's statement was lawfully obtained and deny all allegations to the contrary.

Our review of the case file reveals that statement notice was given by the People at arraignment pursuant to CPL § 710.30(1)(A), and the VDF contains an oral statement allegedly made by Defendant to a public servant on January 15, 2010. Since there is no indication that the People intend to introduce any statement evidence beyond that which is contained in the VDF, the branch of Defendant's motion seeking a hearing to determine the voluntariness of any unnoticed statements is denied with leave granted to re-submit should the People seek to introduce any such evidence at trial. Defendant's request for a hearing to determine the voluntariness of the noticed statement made by Defendant to police officers is granted pursuant to People v. Huntley, supra .

[*6]Preclusion of Undisclosed Statements or Identification

Defendant moves for an order precluding any statements or identification testimony which have not yet been disclosed to the defendant, pursuant to CPL § 710.30. Since there is no indication that the People intend to introduce any such evidence beyond that which is contained in the VDF, this branch of Defendant's motion is denied with leave granted to re-submit should the People seek to introduce any such evidence at trial.

Defendant's Request for a Sandoval Hearing

The branch of the defendant's motion seeking a Sandoval hearing and notice from the People of specific instances of prior uncharged criminal, vicious or immoral conduct is granted to the extent that the Defendant has leave to re-submit this portion of the motion to the trial judge.

Motion for a Bill of Particulars and Discovery

Defendant's motion for a Bill of Particulars and additional discovery is denied. The VDF is sufficient.

The People are reminded of their continuing obligation to supply Brady material.

Cross Motion for Reciprocal Discovery

The People's cross-motion for reciprocal discovery is granted.

Reservation of Rights

The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3).

This opinion constitutes the decision and order of this Court.

Dated: April 8, 2010

Brooklyn, New York

______________________________

MICHAEL GERSTEIN

J.C.C. Footnotes

Footnote 1: In late 1994, in response to a fatal shooting in Brooklyn in which police shot and killed 13 year old Nicholas Heyward, who was carrying a toy gun with a brightly colored grip, James E. Davis, assassinated New York City Council member, who was at the time a police officer, contacted Toys "R" Us to urge that it stop selling toy guns that could be modified to look more realistic. Toys "R" Us took his advice, and started removing toy guns that could be made to look real from its more than 540 stores. Stephanie Strom, Shootings Lead Chain to Ban Toy Guns, NY Times, August 26, 1998.

Footnote 2: The Report notes:

On August 24, 1998, a sixteen year old boy carrying a toy water gun that was mistaken for a real gun was shot by police in Brooklyn. This tragic incident spurred concerns over the adequacy and enforcement of current toy gun regulations. Public officials and representatives of law enforcement groups found toy guns being sold at stores in the City in violation of applicable laws. The City's Department of Consumer Affairs reported that they had issued 68 violations since 1994 to stores selling toy guns in violation of the City's law.