People v McCain (Douglas)
Annotate this CaseDecided on December 31, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-773 Q CR
The People of the State of New York, Respondent,
against
Douglas McCain, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered March 2, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree.
ORDERED that the judgment of conviction is affirmed.
Defendant pleaded guilty to criminal possession of a weapon in the fourth degree (Penal Law § 265.01). The factual portion of the accusatory instrument alleged that the arresting officer had observed defendant in possession of a "razor knife," which was clipped to defendant's outside pants pocket in open public view. The officer determined the knife to be a "razor knife" based upon his training and, after recovering the knife from defendant, based upon his activating the knife to an open and locked position through the force of gravity. The instrument further alleged that defendant told the officer that he was in possession of the knife "for [his] protection" and "at least [he was] not carrying a gun."
On appeal, defendant contends that the accusatory instrument was jurisdictionally defective because it failed to allege evidentiary facts establishing reasonable cause to believe that he possessed the knife with the intent to use it unlawfully against another person. Moreover, carrying such a knife for his protection does not necessarily establish that he intended to use it unlawfully against another person.
At the outset, we note that an argument concerning an accusatory instrument's facial sufficiency is jurisdictional (see People v Alejandro, 70 NY2d 133 [1987]). Thus, defendant's claim was not forfeited upon his plea of guilty (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 573 [2004]) and must be reviewed despite his failure to raise it in the Criminal Court (see Alejandro, 70 NY2d 133).
While the accusatory instrument was denominated an information, defendant, through his counsel, expressly waived his right to be prosecuted by information (see People v Dumay, 23 NY3d 518 [2014]). Consequently, the accusatory instrument's legal sufficiency must be evaluated under the standards which govern the legal sufficiency of a misdemeanor complaint (see Dumay, 23 NY3d at 524). A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (CPL 100.15 [3]) and provides reasonable cause to believe that the defendant committed the offense charged (CPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]).
"[A]n accusatory instrument must be given a reasonable, not overly technical reading" [*2](Konieczny, 2 NY3d at 576; see also People v Casey, 95 NY2d 354, 360 [2000]). When the misdemeanor complaint herein is given such a reading, the "fair implication" (Casey, 95 NY2d at 360) of its averments supports, or tends to support, the charge of criminal possession of a weapon in the fourth degree. The arresting officer's conclusion that the object he observed in defendant's possession was a "razor knife," was based on his training and his personal handling and testing of the knife. Thus, the accusatory instrument sufficiently set forth the facts supporting the officer's belief that defendant possessed a "razor knife" (cf. Dreyden, 15 NY3d 100). Moreover, pursuant to Penal Law § 265.15 (4), "[t]he possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another" (see also People v Moreno, 184 Misc 2d 764 [Crim Ct, NY County 2000]). Furthermore, defendant's admission that he intended to use the knife as a weapon by itself supports the charge (see People v Richards, 22 Misc 3d 798 [Crim Ct, NY County 2008]). Defendant's untested claim that his anticpated use would be justified does not render the accusatory instrument defective, since the issue of whether he had intended to use the knife solely in self-defense is a trial issue, not a pleading one (see Richards, 22 Misc 3d at 803; see also People v Almodovar, 62 NY2d 126, 130 [1984] ["[j]ustification may excuse otherwise unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession of it"]).
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 31, 2015
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