People v Gilliam (Chavarr)

[*1] People v Gilliam (Chavarr) 2013 NY Slip Op 50784(U) Decided on May 16, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 16, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter Jr., JJ
570113/08.

The People of the State of New York, Respondent, - -

against

Chavarr Gilliam, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (ShawnDya L. Simpson, J.), rendered October 19, 2007, convicting him, upon a plea of guilty, of possession of an imitation pistol (Administrative Code of City of NY § 10-131[g], and imposing sentence.

Per Curiam.

Judgment of conviction (ShawnDya L. Simpson, J.), rendered October 19, 2007, affirmed.

The accusatory instrument was not jurisdictionally defective. The information alleged, inter alia, that police recovered from defendant a "black imitation pistol, which appears to look like an actual gun and has an open barrel," and that the arresting officer "was able to identify said item as an imitation pistol based upon his training and experience." Giving the information "a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), we find "as a matter of common sense and reasonable pleading" (People v Davis, 13 NY3d 17, 31 [2009]) that it established reasonable cause to believe and a prima facie case that defendant possessed an imitation pistol within the meaning of Administrative Code of the City of New York § 10-131(g) (see generally People v Judiz, 38 NY2d 529, 532 [1976]). The statements set forth in the information, including allegations that the imitation firearm was black in color and featured an open barrel, were sufficient, for pleading purposes, to establish that the item in question "substantially duplicate[d] or [could] reasonably [have been] perceived to be an actual firearm" (Administrative Code § 10-131[g][1]; see Matter of Timothy L., 29 AD3d 492, 493 [2006]). Further, even assuming, as defendant argues, that the qualifying language of the ordinance exempting from its reach imitation firearms which are "constructed entirely of transparent or translucent materials" created a true "exception" that the People were required to plead (compare People v Davis, 13 NY3d at 31-32 [2009]), the sworn police allegation that the imitation pistol found in defendant's possession was black effectively negated any such exception.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 16, 2013