Criminal Court of the City of New York, Queens County, November 8, 2017

Queens Law Associates (Emily T. Lurie of counsel) for defendant.

Richard A. Brown, District Attorney (Chrystina Lopera of counsel), for plaintiff.

The defendant, Koatnis Lowe, was charged initially with four counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) and one count each of unlawfully possessing or selling noxious material (Penal Law § 270.05 [6]); unlawful possession of marihuana (Penal Law § 221.05); and a vehicle equipment violation (Vehicle and Traffic Law § 375 [2] [a] [4]). On April 28, 2017, the People filed a superseding accusatory instrument dismissing three counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]); modifying the charge of unlawfully possessing or selling noxious material (Penal Law § 270.05) from subdivision (6) to subdivision (2); and adding four counts of possession of knives or instruments (Administrative Code of City of NY § 10-[*2]133 [b]).

The defendant now moves this court to dismiss the superseding accusatory instrument as a nullity and dismiss the underlying accusatory instrument on facial insufficiency grounds. The People, by written response, contest the defendant's position that the superseding accusatory instrument is not an information and oppose his motion to dismiss any charged counts as facially insufficient, excepting one count of Administrative Code § 10-133 (b). After a review of the defendant's motion and reply brief, the People's response and surreply brief and the court file and record, this court makes the following findings.

Where the People choose to supersede a misdemeanor accusatory instrument, it "must . . . be replaced and superseded by an information" (CPL 100.50 [3] [emphasis added]). As such, an attempt by the People to supersede with a mere complaint must be viewed as a nullity, and the case must continue under{**61 Misc 3d at 373} the original accusatory instrument. (Accord e.g. People v Valerio, 54 Misc 3d 791, 799 n 2 [Crim Ct, NY County 2016].)

Here, the defendant asserts that the superseding instrument filed in this case is not an information because (1) the Penal Law § 221.05 count is alleged based upon hearsay field test documentation that has not been filed with the court or served upon defense counsel and (2) multiple counts contained therein are facially insufficient. However, every count of the instant superseding instrument is based on the first-person account of Police Officer Bobby Aronis. Even though Officer Aronis' allegation that the defendant possessed marijuana was based, in part, on the field test, it also was based upon his own experience and training with identifying marijuana and its packaging.

[1] An information "is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, none of which is a felony" (CPL 100.10 [1]). The defendant errs in asserting that the superseding instrument is not an information based upon a mistaken belief that, to be valid, the superseding instrument must be a facially sufficient information. The sufficiency question—i.e., whether the nonhearsay allegations of the superseding instrument are sufficient to support each charge, and in particular, whether the Officer's firsthand observations, independent of the hearsay field test, are sufficient to support the Penal Law § 221.05 count—arises only after it can be affirmatively stated that the instrument is an information. In this case, because every charged count is made pursuant to the nonhearsay accounts of deponent Police Officer Aronis, the superseding instrument is deemed an information, and the defendant's motion to dismiss it as a nullity is denied.

Allegations of the Superseding Information

In addressing the defendant's facial insufficiency arguments, this court must presume true all nonhearsay, evidentiary allegations of the information and any supporting documentation. (See CPL 100.40 [1] [c] ["Non-hearsay allegations of the factual part of the information . . . (must) establish, if true, every element of the offense charged and the defendant's commission thereof" (emphasis added)]; People v Casey, 95 NY2d 354, 360 [2000], quoting CPL 100.40 [1] [c].)

Between 9:30 and 9:43 p.m. of April 12, 2017, deponent Police Officer Bobby Aronis saw the defendant driving a minivan with unilluminated license plate lights. After affecting a stop,{**61 Misc 3d at 374} the Officer recovered two machetes with blades more than four inches long and one axe [*3]hatchet from the vehicle's trunk. The Officer also recovered a knife with a blade more than four inches long, a canister of pepper spray and a plastic bag of marijuana from the defendant's jacket pocket. Officer Aronis determined the substance was marijuana based upon his training in identifying controlled substances and marijuana, and their packaging.^[FN1] The defendant told Officer Aronis that "the pepper spray [is] for protection on the way home."

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." (People v Smalls, 26 NY3d 1064, 1066 [2015], quoting People v Dreyden, 15 NY3d 100, 103 [2010]; see also CPL 170.30, 170.35.) Such a facially sufficient and valid misdemeanor information must contain nonhearsay, non-conclusory, factual allegations of an evidentiary character that establish every element of, and constitute reasonable cause to believe the defendant committed, the charged offenses. (See CPL 70.10, 100.15 [3]; 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986].) Further, "[s]o long as the factu al allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." (People v Ocasio, 28 NY3d 178, 180 [2016], quoting People v Casey, 95 NY2d 354, 360 [2000].)

Count 1: Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2])

[2] One criminally possesses a weapon in the fourth degree by "possess[ing] any . . . weapon with intent to use the same unlawfully against another" (Penal Law § 265.01 [2]). In this case, the information contains absolutely no allegations allowing for the reasonable inference that the defendant intended to use the axe hatchet or one of the machetes in the minivan's trunk, or the pocket knife in his jacket pocket, against another. Therefore, the defendant's motion to dismiss the Penal Law § 265.01 (2) count as facially insufficient is granted.{**61 Misc 3d at 375}

Count 2: Unlawfully Possessing or Selling Noxious Material (Penal Law § 270.05 [2])

It is unlawful to

"possess[ ] noxious material [as defined in Penal Law § 270.05 (1)] . . . under circumstances evincing an intent to use it or to cause it to be used to inflict physical injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace" (Penal Law§ 270.05 [2]).

Further, mere possession alone "is presumptive evidence of intent to use it or cause it to be used in violation of this section" (Penal Law § 270.05 [3]).

However, "[s]elf-defense spray devices [are] not prohibited" if the possessor and device conform to specific requirements. (Penal Law § 270.05 [5] [incorporating Penal Law § 265.20 (a) (14) by reference].) Specifically, a person who is 18 years old or older, and has not been convicted of a crime that would constitute a felony or assaultive crime in New York, may lawfully possess a "pocket sized" type of "self-defense spray device . . . containing tear gas, pepper or similar disabling agent." (Penal Law § 265.20 [a] [14] [a], [b]; see also Penal Law § 270.05 [5].) Thus, the question arises whether this "exemption under" Penal Law § 265.20 (a) (14), as referenced in Penal Law § 270.05 (5), constitutes an "exception" or a "proviso" to Penal Law § 270.05 (2).

[3] As a general rule,

"when a statute contains as part of its enacting clause an exception to the effect that under [*4]certain circumstances the offense is not to be considered as having been committed, that constitutes a true exception which must be negated by the prosecution. However, if the exception is enacted later in the statute or in a subsequent statute, it is a proviso which the People need neither plead nor prove the negative of in order to make out a prima facie case." (People v Sylla, 7 Misc 3d 8, 12 [App Term, 2d Dept, 2d & 11th Jud Dists 2005], citing inter alia People v Kohut, 30 NY2d 183, 186 [1972].)

With respect to Penal Law § 270.05 (2), the provisions under which possession of self-defense sprays is lawful are found either "later in the statute" that initially outlaws such possession {**61 Misc 3d at 376}(i.e., Penal Law § 270.05 [5]) or in a wholly separate statute (i.e., § 265.20 [a] [14]). Thus, Sylla makes clear that these provisions constitute a proviso that the People need not disprove in the accusatory instrument.

This conclusion is further supported by the language of Penal Law § 270.05. The statute first creates a presumption of unlawful intent based solely upon one's possession of noxious material. It next deems the presumed illegality rebutted only if certain prerequisites are met. This statutory scheme evinces a legislative intent that the defendant bear the burden of demonstrating a lawful right to possess noxious material. (See People v Torres, 47 Misc 3d 24, 25-26 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ["the determination of whether an exclusion is 'a proviso that the accused may raise in defense of the charge rather than an exception that must be pleaded by the People in the accusatory instrument' is ultimately a matter of legislative intent"], quoting People v Santana, 7 NY3d 234, 237 [2006]; see also William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 265.20 [The exemptions of Penal Law § 265.20 "are in the nature of a defense; the defendant is required to raise the exemption before the government is required to disprove it beyond a reasonable doubt"].)

Accordingly, this court holds that the exemptions of Penal Law §§ 265.20 (a) (14) and 270.05 (5) are provisos to Penal Law § 270.05 (2). As such the People are not required to affirmatively disprove their applicability for facial sufficiency purposes. Further, as the Penal Law § 270.05 (2) charge is made out sufficiently within the four corners of the superseding information, the defendant's motion to dismiss this count as facially insufficient is denied.

Count 3: Possession of Knives or Instruments (Administrative Code § 10-133 [b] [four counts])

"It shall be unlawful for any person to carry on his or her person or have in such person's possession, in any public place, street, or park any knife which has a blade length of four inches or more" (Administrative Code § 10-133 [b]). In this case, the People correctly concede that one count of this charge is facially insufficient in that the axe hatchet is not alleged to have had a blade of four inches or more. As such, the defendant's motion to dismiss one count of Administrative Code § 10-133 (b) is granted.

{**61 Misc 3d at 377}Count 4: Unlawful Possession of Marihuana (Penal Law § 221.05)

With respect to the Penal Law § 221.05 count and the unconsidered hearsay field testing,^[FN2] the People contend that "[n]either a lab report nor a field test report is necessary for the accusatory instrument to be deemed an information in a marijuana case if the deponent swears that he believes the substance to be marijuana based on his training and experience" (People's Response at 3). The People are partially correct.

[4] It is well settled that laboratory reports and field test reports are not necessary prerequisites to going forward at the pleading stage. (See e.g. People v Kalin, 12 NY3d 225, [*5]230 [2009] ["we reject() the accused's argument that a laboratory report is required to establish a prima facie case of drug possession"].) However, the Kalin Court also held that, to be minimally satisfactory for facial sufficiency purposes, an information alleging misdemeanor possession of marijuana or a controlled substance must

"[1] adequately identif[y] the particular drug, [2] allege[ ] that the accused possessed that illegal substance, [3] state[ ] the officer's familiarity with and training regarding the identification of the drug, [4] provide[ ] some information as to why the officer concluded that the substance was a particular type of illegal drug, and [5] suppl[y] sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy." (Id. at 231-232.)

In this case, the superseding information fails to satisfy the fourth of this five-pronged base Kalin standard, as it is devoid of descriptions of the unique characteristics of the substance and its packaging that led to the Officer's conclusion that it was specifically marijuana. Accordingly, the Penal Law § 221.05 count was not alleged sufficiently, and the defendant's motion to dismiss it is granted.

Count 5: Vehicle Equipment Violation (Vehicle and Traffic Law § 375 [2] [a] [4])

In this case, the deponent Police Officer alleges that the defendant was "operating a gray 2006 Honda minivan with defective license plate lights, in that it [sic] was not illuminated." (Superseding information at 2.) This allegation sufficiently pleads every element of this statute. Therefore, the defendant's motion to dismiss this count of the superseding information is denied.