People v Coumbassa

[*1] People v Coumbassa 2023 NY Slip Op 50940(U) Decided on August 30, 2023 Supreme Court, Kings County Kitsis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 30, 2023
Supreme Court, Kings County

The People of the State of New York,

against

Abdoulaye Coumbassa, Defendant.



Indictment No.: 72055-23



For the defendant: Alexander McHugh (BDS)

For the People: Alejandro Vera, Kings County District Attorney's Office
Michael D. Kitsis, J.

The defendant, who stands charged of one count each of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(3)); Criminal Possession of a Firearm (P.L. § 265.01-b(1)); and Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220.03); has moved to inspect the grand jury minutes and, upon inspection, dismiss the indictment. See C.P.L. § 210.30. The defendant's motion to inspect is granted on consent, and the Court makes the following findings of fact and conclusions of law.

When deciding a motion to inspect and dismiss, the reviewing court must determine "whether the evidence before the grand jury was legally sufficient to support the charges" in the indictment. C.P.L. § 210.30(2); see also People v. Swamp, 84 NY2d 725 (1995). "Legally sufficient" evidence is "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof[.]" C.P.L. § 70.10(1). "The reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted — and deferring all questions as to the weight or quality of the evidence — would warrant conviction." Swamp, 84 NY2d at 730.

Having examined the grand jury testimony and the exhibits that were received in evidence for consideration by the members of the grand jury, the Court finds the evidence before the grand jury was legally sufficient to support counts 2 and 3 in the indictment. See People v. Jensen, 86 NY2d 248 (1995). Therefore, the defendant's motion to dismiss the indictment for legally insufficient evidence is denied as to those counts.

However, the legal sufficiency determination as to count 1, charging Criminal Possession of a Weapon in the Second Degree under Penal Law §265.03(3), requires explanation. To violate that statute, a defendant must possess a loaded firearm, and the possession must take [*2]place in a location other than in his home or place of business.[FN1] That the possession takes place other than in the defendant's home or place of business is an element of the crime that the People must plead and prove. See, People v. Ali, 36 NY2d 880 (1975); People v. Newell, 95 AD2d 815 (2d Dept. 1983); CJI (NY) P. L. §265.03(3)[FN2] , As noted above, in the grand jury the proof that the possession occurred in a place other than in the defendant's home or place of business must be both "legally sufficient." C.P.L. §70.10. Thus, while the proof of the not-in-the-defendant's-home-or-place-of-business element in the grand jury need not be particularly extensive, some small quantum of proof is necessary.

In this case the grand jury heard evidence that the defendant was arrested in a bodega at 783 Hicks Street in Brooklyn. Det. Feller testified that he "responded to 783 Hicks Street for an individual," the defendant, whom he was seeking to arrest on a warrant. Det. Feller testified that the location was a "grocery, sort of bodega." No testimony was elicited about where within the bodega (e.g., standing in front of the check out, or walking in an aisle, or slicing cold cuts behind the counter) Det. Feller saw the defendant. One can infer from defendant's presence in the bodega and from the fact that the detective "responded to" that store that the defendant had some connection to it, but the grand jury never heard evidence about what the connection was. He could have been a customer, an employee, or even the owner, but the grand jury was not presented with any evidence on which it could reasonably find that the bodega was not the defendant's place of business.

In People v. Rodriguez, 113 AD2d 337 (2d Dept. 1985), no evidence was elicited at trial to prove whether the laundromat at which the defendant had possessed the firearm in question was his place of business. Id. at 338. The court held that the People did not need to go forward at trial to prove the not-in-the-defendant's-home-or-place-of-business element unless the defendant first produced "some credible evidence, however slight, to raise the issue." Id. In dissent, Justice Lazer pointed out that to require the defendant initially to go forward to disprove an element of a crime would be impermissible burden shifting, and that in that case the People had submitted no evidence to indicate whether the laundromat was the defendant's place of business. Id. at 344. "Since it is the People's obligation to plead and prove as an element of the crime that the possession did not take place in the defendant's place of business," the court cannot merely presume that fact. Justice Lazer wrote:

Here, the People have proved simply that the defendant was found inside a laundromat with a loaded revolver in his possession. I fail to see the logical connection between the [*3]proven fact that the defendant possessed the weapon in the laundromat and the presumed conclusion that therefore the laundromat was not his place of business. There is simply no line of reasoning which leads from one statement to the other . . . . Id.

On appeal, the Court of Appeals reversed the Appellate Division's holding and dismissed the indictment "for reasons stated in the dissenting opinion of Justice Leon D. Lazer at the Appellate Division." 68 NY2d 674, 675 (1986).

Here, to paraphrase Justice Lazer, the evidence before the grand jury was simply that the defendant was found inside a bodega with a loaded firearm in his possession. Since the grand jury heard no evidence at all to prove that the bodega where Det. Feller saw him in possession of a firearm was not the defendant's place of business, the evidence before the grand jury was insufficient to support count 1. Therefore, count 1 is dismissed pursuant to C.P.L. §210.20(1)(b).

However, it appears that the People likely have or can obtain proof that the bodega was not the defendant's place of business. Indeed, the court file contains some extrinsic evidence tending to show that fact. The People are granted leave to represent the charge to a grand jury pursuant to C.P.L. §210.20(4).

Additionally, the Court finds that the grand jury proceeding was not defective. See C.P.L. § 210.35(5); see also People v. Huston, 88 NY2d 400 (1996). The grand jury transcript indicates that a quorum was present during the presentation of the evidence and during the legal instructions by the assistant district attorney; and the instructions were not defective within the meaning of C.P.L. § 210.35(5). Therefore, the defendant's motion to dismiss the indictment for alleged defects in the grand jury proceedings is also denied.

If the People choose to represent the charge of Criminal Possession of a Weapon in the Second Degree, it is important that the language of the charge is facially sufficient in the written indictment. To be facially sufficient, an indictment generally must contain "[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's . . . commission thereof[.]" C.P.L. §200.50(7)(a). If the statute defining the crime "contains an exception, the indictment must allege that the crime is not within the exception." People v. Kohut, 30 NY2d 183, 187 (1972). Although the Assistant District Attorney properly read the charge to the grand jury, the first count of the written indictment that the court dismisses above does not contain language alleging that the defendant's possession of the firearm was not in his home or place of business. If the first count is represented, the People are directed to both charge the grand jury and to write the indictment to include all of the charge's elements.

The foregoing constitutes the Decision and Order of the Court.

Dated: August 30, 2023
Brooklyn, NY
Hon. Michael D. Kitsis, A.J.S.C. Footnotes

Footnote 1:There are two exceptions to the requirement that the possession take place other than in the defendant's home or place of business. The first is if the defendant has previously been convicted of any crime, as designated in Penal Law §265.02(1). Here, the grand jury heard no such evidence, and the defendant's criminal history indicates that he has no such prior conviction. The second is if the weapon possessed is an assault weapon, §265.02(7), and there was no evidence before the grand jury that the weapon recovered from the defendant was such a weapon.

Footnote 2:Although the authority the court cites here relates explicitly to former Penal Law §265.02(4), the 2006 amendments to the Penal Law elevating the crime from a Class D to a Class C felony, and incorporating the same relevant defining language into the new statute, dictate the same result here.