Opinion
No. 2012–1294 W CR.
04-09-2015
The PEOPLE of the State of New York, Respondent, v. Tyrone R. ADAMS, Appellant.
Opinion
ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18–B of the County Law to prosecute the appeal. New counsel is directed to serve and file a brief within 90 days after the date of this decision and order. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel.
Assigned counsel submitted a brief in accordance with Anders v. California (386 U.S. 738 [1967] ), setting forth his conclusion that there exist no nonfrivolous issues that could be raised on appeal. A review of the record, however, reveals the existence of at least two nonfrivolous issues. Defendant was originally charged by felony complaint with criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ). Thereafter, the Justice Court reduced that charge to criminal possession of a weapon in the fourth degree, a misdemeanor (see Penal Law § 265.01[1] ). Defendant pleaded guilty to the reduced charge. A nonfrivolous issue exists as to whether the felony complaint was properly converted to a misdemeanor complaint so as to effectuate the reduction of the felony charge, in accordance with CPL 180.50(3)(a)(iii) and (b), and, if defendant's waiver of right of appeal was valid, whether it could preclude a claim that the felony complaint was not properly converted (see People v. Jackson, 35 Misc.3d 132[A], 2012 N.Y. Slip Op 50690[U] [App Term, 9th & 10th Jud Dists 2012] ; People v. Rose, 33 Misc.3d 137[A], 2011 N.Y. Slip Op 52055[U] [App Term, 9th & 10th Jud Dists 2011] ; People v. Spooner, 22 Misc.3d 136[A], 2008 N.Y. Slip Op 52664[U] [App Term, 9th & 10th Jud Dists 2008] ; cf. People v. Hunter, 5 NY3d 750, 751–752 [2005] ; People v. Ackridge, 16 Misc.3d 127[A], 2006 N.Y. Slip Op 52596[U] [App Term, 9th & 10th Jud Dists 2006] ).
A second nonfrivolous issue exists as to whether the accusatory instrument is facially sufficient, for which preservation is not required. Defendant is charged with possession of “a switchblade style knife” in violation of Penal Law § 265.01(1). A switchblade knife is defined in Penal Law § 265.00(4) as “any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.” In People v. Dreyden (15 NY3d 100, 103–104 [2010] ), the Court of Appeals determined that a misdemeanor complaint charging a defendant with possession of a gravity knife was jurisdictionally defective, as it did not satisfy the “reasonable cause” requirement of CPL 100.40(4)(b). The Court explained that “[n]ot every knife is a weapon for purposes of Penal Law § 265.01(1), which specifically outlaws possession of a gravity knife, among other weapons” (Dreyden, 15 NY3d at 103–104 ). Penal Law § 265.00(5) defines a gravity knife as a knife with “a blade 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 in place by means of a button, spring, lever or other device.... This definition distinguishes gravity knives from certain folding knives that cannot readily be opened by gravity or centrifugal force” (Dreyden, 15 NY3d at 104 [citation omitted] ). Thus, an accusatory instrument charging a defendant with possession of a gravity knife must contain “nonconclusory factual allegations ... establishing the basis for the deponent's belief that the object observed ... was in fact a gravity knife” (Matter of Michael Grudge M., 80 AD3d 614, 614 [2011] ).
Just as a gravity knife is “a per se weapon” (Dreyden, 15 NY3d at 104 ) listed in Penal Law § 265.01(1), and specifically defined in Penal Law § 265.00(5), so is a “switchblade knife” a “per se weapon” listed in Penal Law § 265.01(1), and specifically defined in Penal Law § 265.00(4). The accusatory instrument in this case alleges only that defendant possessed “a switchblade style knife.” While the accusatory instrument refers to a supporting deposition being annexed thereto, the record before us contains no supporting deposition. Thus, a nonfrivolous issue exists as to whether an accusatory instrument alleging possession of a switchblade knife must contain factual support, as is required in an accusatory instrument alleging possession of a gravity knife, and if so, whether the accusatory instrument herein is facially defective.
We therefore grant assigned counsel's motion to withdraw as counsel, and, in light of the risk inherent in the issue regarding the lack of notations to the original felony complaint (see People v. Spooner, 22 Misc.3d 136[A], 2008 N.Y. Slip Op 52664[U] [App Term, 9th & 10th Jud Dists 2008] ), assign new counsel to ascertain whether defendant desires to raise the first of the two issues set forth above and to prosecute the appeal on defendant's behalf with respect to these issues or any other issue that can be identified.
MARANO, P.J., IANNACCI and TOLBERT, JJ., concur.