People v Byrd

[*1] People v Byrd 2012 NY Slip Op 50805(U) Decided on May 7, 2012 Criminal Court Of The City Of New York, Kings County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2012
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Tyrell A. Byrd, Defendant.



2012KN006199



For the People, Charles J. Hynes, District Attorney, Kings County, by Katarina Galic, Esq., Assistant District Attorney.

For the Defendant, Steven Banks, Legal Aid Society by Susanna De La Pava, Esq.

John H. Wilson, J.

Defendant is charged with Criminal Possession of a Weapon (PL Sec. 265.01), a Class A Misdemeanor.

By motion dated March 6, 2012, Defendant seeks dismissal of the sole charge of the docket, asserting that the People's complaint is facially insufficient, rendering said complaint jurisdictionally deficient. The Court has reviewed the Court file, Defendant's motion, and the People's superceding information dated May 2, 2012.

For the reasons stated below, the motion to dismiss is granted to the extent of ordering the People to provide a superceding information to the Court and defense within 30 days of the date of publication of this decision.

FACTUAL STATEMENT

Pursuant to the superceding Criminal Court information, on or about January 22, 2012 the [*2]Defendant was observed by Police Officer Mejia (deponent) to be "in possession of a gravity knife."

The superceding information asserts that the deponent "recovered said gravity knife from the Defendant's person." See, superceding Criminal Court Complaint dated January 23, 2012. Further, the Officer asserts that the gravity knife "has a blade that opens through force of gravity or centrifugal force and locks in place by means of a button, spring or other device." See, superceding Criminal Court Complaint dated January 23, 2012.

A supporting deposition, signed by Officer Mejia and dated January 22, 2012 was filed and served with the superceding information. That supporting deposition adds no further or additional facts.[FN1]

LEGAL ANALYSIS RE: FACIAL SUFFICIENCY

Defendant asserts that pursuant to People v. Dryden, 15 NY3d 100, 905 NYS2d 542 (2010), the People have failed to assert anything but conclusory language in support of their allegations. In particular, "the People's complaint does nothing but echo and mirror the...statute" See, Defendant's motion dated March 6, 2012, p 8 para 14. Further, "the deponent officer does not state anything regarding his training and expertise in identifying weapons of this nature." See, Defendant's motion dated March 6, 2012, p 8 para 14.

CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987). [*3]

On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).

Applying these principles to the instant matter, it is clear that Defendant is correct; the factual allegations contained in the superceding information before this Court are facially insufficient.

Under CPL Sec. 265.01(1), a defendant is guilty of Criminal Possession of a Weapon in the Fourth Degree when he possesses any one of several enumerated weapons, including a "gravity knife." CPL Sec. 265.00(5) defines a gravity knife as "any knife which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force, which, when released, is locked into place by means of a button, spring, lever or other device."

In Dryden, supra, the Court of Appeals upheld the Dumas standard, and found that allegations of an officer's training and experience in the identification of gravity knives were necessary before a complaint alleging possession of a gravity knife in violation of PL Sec. 265.01 would be deemed sufficient. 15 NY3d at 104. However, the decision in Dryden was based upon a finding that "a conclusory statement that an object recovered from the defendant was a gravity knife does not alone meet the reasonable cause requirement" of CPL Sec. 100.40(4)(b). 15 NY3d at 104. There is nothing in the Dryden decision, nor in Dumas, to support a belief that a recitation of the officer's training and experience is the only language that may be employed to satisfy sufficiency.

In People v. Hawkins, 1 Misc 3d 905(A), 781 NYS2d 627 (Crim Ct, NY Cty, 2003), the Court found sufficient allegations regarding the officer's ability "to open (the knife) through centrifugal force or gravity." The Hawkins Court found that such allegations would "establish an evidentiary basis for the deponent officer to conclude that the knife recovered...was a gravity knife." Further, in People v. Mathis, 32 Misc 3d 1205(A) (Crim Ct, Richmond Cty, 2011), the Court stated that it "is not convinced that Dryden...establishes an additional requirement that every accusatory instrument alleging possession of contraband must contain a recitation of the arresting officer's prior training and experience...where there are also accompanying allegations of a nonconclusory nature."

Here, the superceding information states that the gravity knife alleged to have been recovered from Defendant's person "has a blade that opens through force of gravity or centrifugal force and locks in place by means of a button, spring or other device." See, superceding Criminal Court Complaint dated January 23, 2012. There is no statement to establish that Officer Mejia has training and experience in the identification of gravity knives, nor does the complaint indicate that Officer Mejia tested the knife recovered to determine if it was in fact a gravity knife. [*4]

Thus, the requirements of Dryden, Hawkins and Mathias are not satisfied by the superceding information presented herein. In this case, however, the People will be given the opportunity to supercede the information.

In People v. Camacho, 185 Misc 2d 31, 711 NYS2d 283 (Crim Ct, Kings Cty, 2000), the court ruled that where a complaint is found to be facially insufficient, curing the defect "is imperative, because...the court's jurisdiction is no longer assured. The People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect). " 185 Misc 2d at 36. (Citation omitted).

In many instances, "the lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible." See, People v. Gore, 143 Misc 2d 106, 109, 540 NYS2d 147 (Crim Ct, Kings Cty, 1989), citing Dumas.

Here, there is no reason why the People cannot state whether Officer Mejia has training and experience in the identification of gravity knives, or whether or not he tested the knife to ascertain if it was, in fact, a gravity knife. The addition of either of these assertions would satisfy the elements of Criminal Possession of a Weapon in the Fourth Degree, and render this charge sufficient.

Under the circumstances of this case, the People have the ability to correct the defect, and state additional facts in their information. Therefore, the People will be given the opportunity to cure this error by "either filing a superceding information or prosecutor's information." See, People v. Evangelista, 1 Misc 3d 873, 874, 771 NYS2d 791(Crim Ct Bx Cty 2003).

Thus, the People have 30 days from the date of publication of this decision to provide a superceding information, or a prosecutor's information, regarding the sole count of the Criminal Court complaint.

All other arguments advanced by the parties have been reviewed and rejected by this Court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkMay 7, 2012

_______________________________Hon. John H. Wilson, JCC Footnotes

Footnote 1: Initially, the People charged Defendant with AC 10-133(b), Possession of Knives or Instruments with a Blade in Excess of Four Inches or More, a violation. Defendant argues that CPL Sec. 100.50 demands dismissal of the docket because "unless converted at arraignments to an information, any complaint containing an uncorroborated violation must be summarily dismissed." See, Defendant's motion dated March 6, 2012, p 3, para 6. Since the superceding information at issue herein was substituted in place of the original complaint at the Defendant's arraignment, CPL Sec. 100.50 is inapplicable. Defendant was actually arraigned on the superceding information.