People v Torres

[*1] People v Torres 2012 NY Slip Op 50795(U) Decided on May 4, 2012 Supreme Court, Bronx County Livote, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2012
Supreme Court, Bronx County

The People of the State of New York

against

Meliza Torres, Defendant.



68602C-2009

Leonard Livote, J.

The defendant is charged with criminal possession of a weapon in the fourth degree (PL § 265.01(1)) and possession of ammunition (Admin. Code § 10-131(i)(3)). The People move to reduce the charges to attempted criminal possession of a weapon in the fourth degree and attempted possession of ammunition.

The defendant opposes the motion on two grounds. First, the defendant argues that these possession charges cannot be reduced because attempted criminal possession of a weapon and attempted possession of ammunition are not cognizable offenses.

An attempt occurs "when, with intent to commit a crime [a person] engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00). Thus, an attempt to commit a possessory offense requires an element of intent that may not be necessary for the completed crime.

In People v. Saunders, (85 NY2d 339 [1995]), the Court of Appeals considered whether attempted possession of a weapon was a cognizable crime. In Saunders, the defense argued that the specific intent required for an attempt is incompatible with the strict liability nature of the crime. The Court rejected this argument stating that "the specific intent required to commit an attempt is not, under all circumstances, incompatible with recognizing penal responsibility for an attempt to commit a strict liability offense" (id. at 343 (emphasis added)). The Court went on to emphasize that its analysis did not apply to "constructive, attributive possession circumstances" (id.). And concluded that "while numerous, varied types of conduct by a criminal actorintentional, knowing, nonintentional, implied, inferred and constructivemay qualify as an "aware[ness]" necessary to constitute the "possession" defining the underlying crime, they may not all theoretically qualify for attempt prosecutions (id at 344, quoting Penal Law § 15.00 [2]).

In the case at bar, the defendant does not argue that the attempted crimes are per se untenable. Rather, she argues, that they are not cognizable because the People are relying on a theory of constructive possession and, therefore, will be unable to prove the specific intent required to prove an attempt.

At this point of the proceedings it is impossible to ascertain what theory of possession the [*2]people will rely on. If the People rely on a constructive possession theory and are unable to prove specific intent, this would only affect their ability to prove the crimes. It would not result in the attempted possession crimes becoming hypothetical, nor should it prevent the People from reducing the charges. The People's ability to reduce the charges is, however, constrained by CPL § 100.50.

Section 100.50(2) of the Criminal Procedure Law requires that the reduced charges be supported by "allegations of the factual part of the original information" (see also, People v. Williams, 120 Misc 2d 68 [Crim. Ct. Bronx County 1983]). The factual portion of this information states:

"Deponent states, that at the above time and place, defendant's residence, he observed the defendant to have in her custody and control, in the bedroom closet of defendant's child, one (1) .38 caliber revolver, and under the stairs of said location, thirty-six (36) .22 caliber live rounds of ammunition and one hundred five (105) .357 live rounds of ammunition (each round is a metal casing topped by a metal projectile).

Deponent further states that defendant stated in sum and substance:

ALRIGHT, I'M NERVOUS. I NEED TO TELL YOU SOMETHING. THERE IS SOMETHING HERE. I JUST MOVED IT WHEN YOU CAME IN BECAUSE I GOT NERVOUS. IT'S NOT MINE I FOUND IT IN THE HOUSE. MY BABY'S FATHER AND HIS FRIEND KEEP STUFF IN HERE. HE KEEP SOME OF HIS STUFF UNDER THE STEPS, IF THERE IS ANYTHING ELSE IT IS STASHED THERE. I TOLD THIS GUY. I THOUGHT HE PICKED ALL THIS STUFF UP.

Deponent further states that defendant stated, in sum and substance, in writing: THE COPS CAME HERE AND THEY TOLD ME WHY THEY WERE HERE. I WAS AFRAID BECAUSE I SOMETHING WAS HERE. AND I WAS NERVOUS. I FOUND A FIREARM IN MY HOUSE MOVED IT TO ANOTHER ROOM BECAUSE I WAS AFRAID. I TOLD THEM THE TRUTH. I SHOWED THE POLICE THE FIREARM THAT DOESN'T BELONG TO ME. I HAD NO KNOWLEDGE OF THE GUN FOUND IT IN MY HOUSE AND IT BELONGS TO MY DAUGHTER'S FATHER."

The statements attributed to the defendant are sufficient to establish reasonable cause to believe that the defendant knowingly possessed the weapon. This is sufficient, for pleading purposes, to establish the specific intent necessary to commit the crime of attempted criminal possession of a weapon in the fourth degree. Accordingly, the People's motion to reduce this charge is granted.

With respect to the proposed reduction of the attempted possession of ammunition charge, the evidence is sufficient to establish reasonable cause to believe that there was ammunition stored under the stairs, the defendant was aware that her child's father stored items under the basement stairs, that she found a weapon belonging to her child's father in the house. From these facts, it is a reasonable inference that the defendant was aware that the ammunition was stored there.

The defendant also opposes the People's motion to reduce the possession of ammunition charge on the grounds that section 110 of the penal law (attempt) does not apply to the administrative code. Section 5.05(2) of the penal law states: "Unless otherwise expressly provided, or unless the context[*3]otherwise requires, the provisions of this chapter shall govern theconstruction of and punishment for any offense defined outside of thischapter and committed after the effective date thereof, as well as theconstruction and application of any defense to a prosecution for such anoffense."

Thus, the penal law specifically anticipates that it may apply to other laws.

Furthermore, a criminal attempt is committed when, "with intent to commit a crime, [a person] engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00). "Crime," in turn, is defined as "a misdemeanor or a felony" (Penal Law § 10.00 [6]). Thus, an "attempt to commit any misdemeanor or felony, wherever codified, falls within the express purview of Penal Law § 110.00" (People v Pao Fun, 16 Misc 3d 917 [2007]).

Accordingly, the provisions of the penal law, including attempt, presumptively apply to the administrative code. Section 10-131 does not expressly provide that the penal law does not apply. The defendant maintains that the context of section 10-131 precludes application of penal law § 110.

In People v. Prescott, (95 NY2d 655 [2001]), the Court of Appeals rejected the argument that section 110 of the penal law could be applied to sections 1192 (driving while intoxicated) and 511 (aggravated unlicensed operation of a motor vehicle). The Court based its ruling on the fact that these statutes constitute integrated statutory schemes which provide exclusive penalties. Furthermore, criminalizing an attempt to commit these crimes is unnecessary because the definition of operation is broad enough to include conduct which might otherwise constitute an attempt.

Applying these criteria to the case at bar, section 10-131 of the administrative code is integrated to the extent that it incorporates various provisions relating to firearms. It is, however, far broader than VTL §§ 1992 or 511, including provisions relating to items as diverse as pistols, tear gas and toy guns. Furthermore, the statute explicitly criminalizes the attempt to posses or use tear gas (Admin Code 10-131 (e)), attempt to use or give away any toy firearm (Admin Code 10-131 (g)(1)), attempt to modify a firearm to make it a deceptively colored firearm (Admin Code 10-131 (j)(2)) and, attempt to possess a deceptively colored firearm (Admin Code 10-131 (j)(3)). The defendant argues that, by criminalizing attempt in some subsections, the drafters of the administrative code indicated that there was no attempt liability for the other subsections.

In addition, section 10-131 has its own penalty scheme. Subsection f provides for a general penalty of a fine of not more than $50 or imprisonment not exceeding 30 days. Subsection g(3)(b) provides for the sealing of premises having violated the provision prohibiting certain toy firearms. Other subsections provide that violations arising from toy firearms (g(4)), ammunition (i(3)), and deceptively colored firearms (j(4)) are misdemeanors.

Although administrative code section 10-131 does, to some extent, provide its own penalty scheme, this scheme is not wholly exclusive. Nor is the administrative code integrated to the degree that VTL §§ 1192 and 511 are. The fact that the administrative code criminalizes attempt in some circumstances may simply reflect a desire to criminalize the attempted conduct without any reduction in the penalty. Accordingly, the context of Administrative Code § 10-131 does not preclude application of Penal Law § 110.

The Peoples' motion to reduce the charges is, therefore, granted. [*4]

This constitutes the Decision and Order of the Court.

A.J.S.C.