Opinion
2014-03-3
The PEOPLE of the State of New York, v. Edwin DIAZ, Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Thomas A. Ostendorp, Esq., Assistant District Attorney, for the People. Steven Banks, Esq., Legal Aid Society, by Jeremy Robert Davidson, Esq., for the Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Thomas A. Ostendorp, Esq., Assistant District Attorney, for the People. Steven Banks, Esq., Legal Aid Society, by Jeremy Robert Davidson, Esq., for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with one count of Criminal Possession of a Weapon in the Fourth Degree (P.L. Sec. 265.01(2)), a Class A Misdemeanor.
By motion dated November 27, 2013, Defendant seeks dismissal of the Criminal Court complaint, asserting that the allegations contained therein are facially insufficient and dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors.
The Court has reviewed the Court file, Defendant's motions, and the People's Response dated January 22, 2014.
For the reasons stated below, the motion to dismiss is granted to the extent of ordering the People to provide a supercedinginformation to the Court and defense within 30 days of the date of publication of this decision.
The motion to dismiss pursuant to CPL Sec. 30.30 is denied. The People are charged with 0 days to date in this matter.
FACTUAL STATEMENT
Pursuant to the Criminal Court complaint, on or about June 4, 2013 at approximately 7:00 P.M., the Defendant was observed at the rear of 1195 Clay Avenue, Bronx, New York by Police Officer Anderson Ortiz, to “have on his person, in his left pants pocket, one (1) dagger.” See, Criminal Court complaint dated June 5, 2013.
LEGAL ANALYSIS
(A) Defendant's Motion to Dismiss for Facial Insufficiency.
Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).
Applying these principles to the instant matter, it is clear that Defendant is correct; the factual allegations contained in the information before this Court are facially insufficient.
Defendant asserts that “the complaint does not ... make ... reference to the arresting officer's training and experience in identifying the item as a dagger.” See, Defendant's Memorandum of Law, attached to his motion to dismiss dated November 27, 2013, p 2.
Defendant also asserts that “there are no allegations that (Defendant) had any intent to use the alleged dagger against another person unlawfully.” See, Defendant's Memorandum of Law, attached to his motion to dismiss dated November 27, 2013, p. 2. However, under PL Sec. 256.15(4), “the possession by any person of any dagger ... is presumptive evidence of intent to use the same unlawfully against another.”
Under PL Sec. 265.01(2), a defendant is guilty of Criminal Possession of a Weapon in the Fourth Degree when he possesses any one of several enumerated weapons, including a “dagger.” PL Sec. 265.00 does not provide a definition of a dagger.
In People v. Dreyden, 15 N.Y.3d 100, 905 N.Y.S.2d 542, 931 N.E.2d 526 (2010), the Court of Appeals found that allegations of an officer's training and experience in the identification of gravity knives were necessary before a complaint alleging possession of a gravity knife in violation of PL Sec. 265.01 would be deemed sufficient. 15 N.Y.3d at 104, 905 N.Y.S.2d 542, 931 N.E.2d 526. However, the decision in Dreyden was based upon a finding that “a conclusory statement that an object recovered from the defendant was a gravity knife does not alone meet the reasonable cause requirement” of CPL Sec. 100.40(4)(b). 15 N.Y.3d at 104, 905 N.Y.S.2d 542, 931 N.E.2d 526. There is no statement to establish that the arresting officer has any training and experience in the identification of daggers.
While Dreyden and the cases cited herein pertain to gravity knives, there is no reason in law or fact why the principles of Dreyden should not be applied to other weapons enumerated in PL Sec. 265.01, such as daggers, dirks, razors, or stilettos. See, People v. Francis, 17 Misc.3d 870, 871, 847 N.Y.S.2d 398 (S. Ct., Bx. Cty., 2007). (Officer testifying at suppression hearing describes his one week of training at the Police Academy in the identification of weapons, “including gravity knives, daggers, switch blades, and various firearms.”)
It is important to note that there is nothing in the Dreyden decision to support a belief that a recitation of the officer's training and experience is the only language that may be employed to satisfy sufficiency. In People v. Hawkins, 1 Misc.3d 905(A), 781 N.Y.S.2d 627 (Crim. Ct., N.Y. Cty., 2003), the Court found sufficient allegations regarding the officer's ability “to open (the knife) through centrifugal force or gravity.” The Hawkins Court found that such allegations would “establish an evidentiary basis for the deponent officer to conclude that the knife recovered ... was a gravity knife.”
Further, in People v. Mathis, 32 Misc.3d 1205(A), 2011 WL 2570997 (Crim. Ct., Richmond Cty., 2011), the Court stated that it “is not convinced that Dreyden ... establishes an additional requirement that every accusatory instrument alleging possession of contraband must contain a recitation of the arresting officer's prior training and experience ... where there are also accompanying allegations of a nonconclusory nature.”
Here, the People's information is devoid of any allegations to establish the basis for the officer's knowledge that the item recovered was, in fact, a dagger. All the complaint states is that the officer observed Defendant to “have on his person, in his left pants pocket, one (1) dagger.” See, Criminal Court complaint dated June 5, 2013. The complaint does not offer any description of the item recovered, except for the bald assertion that the item is a dagger.
Thus, the requirements of Dreyden, Hawkins and Mathis are not satisfied by the complaint presented herein. In this case, however, the People will be given the opportunity to supercede the information.
In People v. Camacho, 185 Misc.2d 31, 711 N.Y.S.2d 283 (Crim. Ct., Kings Cty., 2000), the court ruled that where a complaint is found to be facially insufficient, curing the defect “is imperative, because ... the court's jurisdiction is no longer assured. The People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect).” 185 Misc.2d at 36, 711 N.Y.S.2d 283. (Citation omitted).
In many instances, “the lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible.” See, People v. Gore, 143 Misc.2d 106, 109, 540 N.Y.S.2d 147 (Crim. Ct., Kings Cty., 1989), citing Dumas.
Here, there is no reason why the People cannot state whether Officer Ortiz has training and experience in the identificationof daggers, or whether or not the recovered item conforms to the common description of a dagger. The addition of either of these assertions would satisfy the elements of Criminal Possession of a Weapon in the Fourth Degree, and render this charge sufficient.
Under the circumstances of this case, then, the People have the ability to correct the defect, and state additional facts in their information. Therefore, the People will be given the opportunity to cure this error by “either filing a superceding information or prosecutor's information.” See, People v. Evangelista, 1 Misc.3d 873, 874, 771 N.Y.S.2d 791 (Crim. Ct. Bx. Cty. 2003).
Thus, the People have 30 days from the date of publication of this decision to provide a superceding information, or a prosecutor's information, regarding the sole count of the Criminal Court complaint.
(B) Defendant's Motion to Dismiss Pursuant to CPL Sec. 30.30.
Defendant asserts that “(b)ecause the accusatory instrument is insufficient on its face ... the People have never actually been ready in this case.” See, Defendant's Memorandum of Law, attached to his motion to dismiss dated November 27, 2013, p. 4.
As discussed above, Defendant's motion to dismiss the Criminal Court complaint as facially insufficient has been granted. However, it does not follow that Defendant's motion to dismiss pursuant to CPL 30.30, on the ground of facial insufficiency, must then be granted. Instead, in the Court's discretion, the People have been granted leave to replead their allegations.
It is true that “a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.” See, People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). However, “replacement of one accusatory instrument which is defective by another involving the same crime does not affect time computations ... the fact that a superceding instrument is filed does not automatically render the entire period prior thereto as includable.” See, People v. Odoms, 143 Misc.2d 503, 504, 541 N.Y.S.2d 720 (Crim. Ct., Kings Cty., 1989).
Here, the defect in the People's Criminal Court complaint has been discovered at the pre trial stage. Under that circumstance, “the People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (cure the defect). Any period of time beyond such reasonable period is chargeable to the People pursuant to CPL Sec. 30.30.” See, Camacho, 185 Misc.2d at 36, 711 N.Y.S.2d 283. (Citation omitted, emphasis added).
Therefore, a finding that a complaint is facially insufficient does not automatically lead to dismissal under CPL Sec. 30.30, particularly when it is a simple matter for the People to cure the defect, given a reasonable period of time. On this basis, then, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 will be denied.
This Court will now determine whether any time is charged to the People pursuant to CPL Sec. 30.30 for any other reasons.
The top count of the Criminal Court complaint is a Class A misdemeanor. Thus, 90 days is the applicable time limit. See, CPL Sec.30.30(1) (c); People v. Cooper, 98 N.Y.2d 541, 543, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002) (“CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action.”)
Defendant was arrested in the instant matter on June 4, 2013, and arraigned on the next day. At Defendant's arraignment, the People stated ready for trial, satisfying the requirements of People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985), which states that “there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court ... or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record...” (Emphasis added).
Defendant was released in his own recognizance, and the matter was adjourned for motion practice to July 9, 2013. This adjournment is excluded under CPL Sec. 30.30(4)(a).
On July 9, 2013, pre-trial hearings were ordered, and the matter was adjourned for trial to August 28, 2013. Since the People are afforded a reasonable opportunity to be ready for hearings and trial, this time is excluded. See People v. Fleming, 13 A.D.3d 102, 785 N.Y.S.2d 333 (1st Dept., 2004), and cases cited therein.
On August 28, 2013, and the subsequent adjourn date of October 8, 2013, the People stated ready for trial. Defendant requested both adjournments. This time is excluded.
Since all subsequent adjournments, have been for the purpose of considering Defendant's motions, all additional adjournments are excluded in their entirety under CPL Sec. 30.30(4)(a). See, People v. Hodges, 12 A.D.3d 527, 784 N.Y.S.2d 638 (2d Dept., 2004); People v. Sivano, 174 Misc.2d 427, 429, 666 N.Y.S.2d 875 (App. Term, 1st Dept., 1997).
There being 0 days charged to the People to date in this matter, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is denied.
All other arguments and requests for any additional hearings and relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit.
This shall constitute the opinion, decision, and order of the Court.