[*1]
People v Thomas
2010 NY Slip Op 51520(U) [28 Misc 3d 1228(A)]
Decided on July 7, 2010
Criminal Court Of The City Of New York, New York County
Sciarrino, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2010
Criminal Court of the City of New York, New York County


The People of the State of New York,

against

Davaugn Thomas, Defendant.




2010NY026966

Matthew A. Sciarrino, J.



The defendant, Davaugn Thomas, is charged with criminal possession of a weapon in the fourth degree (P.L. §265.01[1]). He now moves the Court for an order inter alia: dismissing the accusatory instrument for facial insufficiency.

FACIAL SUFFICIENCY


An accusatory instrument upon which the defendant may be held for trial "must allege facts of an evidentiary character' (CPL §100.15[3]) demonstrating reasonable cause to believe that the defendant committed the crime charged (CPL §100.40[4][b])." People v. Dumas, 68 NY2d 729, 731 (1986). Further, a valid criminal court information must contain non-hearsay factual allegations which, if true, "establish . . . every element of the offense charged and the defendant's commission thereof." CPL §100.40(1)(c). A failure to allege every element of the offense charged is a jurisdictional defect. People v. Kalin, 12 NY3d 225, 229 (2009); People v. Casey, 95 NY2d 354, 364 (2000).

The within accusatory instrument states that on April 8, 2010, at about 11:09 p.m. opposite 1560 Broadway in the County and State of New York:

. . . deponent recovered a shirken, commonly known as a Kung Fu Star, hanging from a chain around the defendant's neck.

A person is guilty of crminal possession of a weapon in the fourth degree pursuant to P.L. 265.01(1) when: He . . . possesses any . . . shirken or "Kung Fu Star". . . ."

A "Kung Fu star" is "a disc-like object with sharpened points on the circumference thereof and is designed for use primarily as a weapon to be thrown." P.L. §265.00(15-b). The Penal Law does not provide a definition of a shirken.[FN1] [*2]

The Court finds that the charge of criminal possession of a weapon in the fourth degree must be dismissed for facial insufficiency in light of the recent Court of Appeals decision in People v. Dreyden, __ NY3d __, 2010 NY Slip Op. 05243 (June 15, 2010). In Dreyden, the Court applied the test for a jurisdictional defect that was set forth in People v. Kalin, 12 NY3d 225 (2009), to a case alleging the possession of a gravity knife pursuant to P.L. §265.01.[FN2] The misdemeanor complaint in Dreyden failed to "give any support or explanation whatsoever for the officer's belief" that the defendant possessed a gravity knife. Dreyden, Slip Op. at 3.

A conclusory statement that an object recovered from a defendant is a gravity knife does not alone meet the reasonable cause requirement. An arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant's possession was a gravity knife, as opposed to a pocket knife, craft knife or other type of knife that does not fit the definition of a per se weapon as defined in Penal Law article 265.


Dreyden, Slip Op. at 3.

An identical issue as that set forth in Dreyden, i.e., that the accusatory instrument is bereft of factual allegations establishing the basis for the officer's belief that the weapon was a gravity knife, was set forth in the within case with respect to a shirken, otherwise known as a Kung Fu Star. The accusatory instrument in the instant case merely alleges that the defendant was in possession of a shirken without any indication of the factual basis for such conclusion. The accusatory instrument, as in Dreyden, is devoid of allegations lending support or explanation for the officer's belief that the item around the defendant's neck was a shirken. As set forth in Dreyden, the arresting officer should have, "at the very least, explain[ed] briefly, with reference to [her] training and experience, how

. . . she formed the belief that the object" in the defendant's possession was a shirken, as opposed to some other type of object or weapon that "does not fit the description of a per se weapon as defined in Penal Law article 265." Dreyden, Slip Op. at 3. Absent such allegations, the accusatory instrument must be dismissed for facial insufficiency.

Accordingly, the defendant's motion to dismiss for facial insufficiency is granted. Because the accusatory instrument is dismissed for facial insufficiency, the Court finds it unnecessary to [*3]

address any other branches of the defendant's motion.

This opinion shall constitute the decision and order of the Court.

Dated: July 7, 2010_______________________

New York, New YorkMatthew A. Sciarrino, Jr.

Judge of the Criminal Court

Footnotes


Footnote 1:"A book on the martial arts . . . reveals that Japanese Ninja warriors carried a shurken,' identified as a sharp pointed throwing star, often tipped with deadly poison.' In other words, it appears that NY Penal Law §265.01(1) uses two different terms for the same per se weapon, because a shirken' appears to be the same as a Kung Fu star.'" 6 Greenberg & Yurowitz, New York Criminal Law §33:4 (West's NY Prac. Series 2010) (quoting Peter Lewis, The Martial Arts: Origins, Philosophy, Practice [Prion 2001]).

Footnote 2:The test is "whether the accusatory instrument" supplied the "defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy. . . ." People v. Dreyden, Slip Op. at 3.