Criminal Court of the City of New York, New York County, September 5, 2018

The Legal Aid Society (Ying-Ying Ma of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Andrew Keenan of counsel), for plaintiff.

The defendant, Latisha Bankston, is charged with one count of criminal possession of a forged instrument in the third degree (Penal Law § 170.20), one count of unlawfully possessing or selling noxious material (Penal Law § 270.05 [2]) and one count of sale or possession of tear gas (Administrative Code of City of NY § 10-131 [e] [1]). The defendant has filed an omnibus motion seeking dismissal of the information as facially insufficient and for other relief. The People oppose the motion to dismiss as to Penal Law § 170.20 but failed to respond as to the remaining charges: Penal Law § 270.05 (2) and Administrative Code § 10-131 (e) (1). For the reasons stated below, the defendant's motion to dismiss is granted as to Penal Law § 170.20 and Administrative Code § 10-131 (e) (1) and denied as to Penal Law § 270.05 (2). The defendant's remaining motions are decided as set forth below.

The defendant was arraigned on March 5, 2018, on the instant accusatory instrument. The relevant portion of the factual allegations sworn by Police Officer (PO) Sulhai Patrone read as follows:

"I observed the defendant operating a motor vehicle (the key was in the ignition, the engine was running and the defendant was behind the wheel) on a public highway at (the south west corner of 3 Avenue & East 124 Street in the County and State of New York). I observed a temporary Texas license plate bearing the number 87T0428 affixed to the aforementioned motor vehicle.

"I examined the temporary Texas license plate and determined that it was forged based on the following factors: (i) a computer check of the license plate number revealed that the temporary license plate was not registered to the vehicle that the defendant was driving; (ii) a section of the license plate where the permit number was located stated 'Tag #' instead of 'Permit #'; (iii) a legitimate temporary Texas license plate states the date and{**61 Misc 3d at 672} time for which the permit is effective and for which the permit expires and the license plate that the defendant possessed did not state the effective date or time for the permit nor did it state the effective time that the permit expired; and (iv) the issuing dealer for the temporary Texas license plate that the defendant possessed was located in Miami, Florida and not in Texas.

"I observed Police Officer Kevin Weber, Shield #26421, recover one cannister of pepper spray from the driver's side door panel of the car that the defendant was driving. I know that the substance was pepper spray based on my training and experience as a police officer and the defendant's statement to me: I thought pepper spray was legal here."

Facial Insufficiency Claim

The defendant argues that based on these factual allegations, the charges of criminal possession of a forged instrument in the third degree (Penal Law § 170.20), unlawfully possessing or selling noxious material (Penal Law § 270.05 [2]), and sale or possession of tear gas (Administrative Code § 10-131 [e] [1]) are facially insufficient. Specifically, the defendant asserts that as to Penal Law § 170.20, the People have not set forth sufficient facts to establish that he had knowledge of being in possession of a forged license plate. As to Penal Law § 270.05 (2), the defendant argues that absent a laboratory report confirming the presence of a noxious material, the factual allegations are hearsay and thus not sufficient to identify the chemical contents of the cannister. Finally, the defendant avers that the charge of Administrative Code § 10-131 (e) (1) is insufficient because the accusatory instrument does not specifically state that the defendant does not fall within the statutory exception.

To be facially sufficient, an accusatory instrument must allege nonhearsay facts that would give the court reasonable cause to believe that a defendant committed the offense(s) charged and establish, if true, every element of any such offense (see CPL 100.40; People v Alejandro, 70 NY2d 133, 137 [1987]). An information is sufficient on its face when the three requirements enumerated in CPL 100.40 (1) are met: first, the information must substantially conform to the formal requirements of CPL 100.15 (CPL 100.40 [1] [a]); second, the factual allegations and any supporting depositions must "provide reasonable cause to believe that the defendant committed the offense{**61 Misc 3d at 673} charged" (CPL 100.40 [1] [b]); and third, the nonhearsay allegations, if true, must establish every element of the offense charged and the defendant's commission thereof (CPL 100.15 [3]; 100.40 [1] [c]; see People v Dumas, 68 NY2d 729 [1986]).

"Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed [the offense]." (CPL 70.10 [2] [internal quotation marks omitted].)

A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[s]o long as the factual 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 Casey, 95 NY2d 354, 360 [2000]).

The accusatory instrument alleging a violation of Penal Law § 170.20 is facially insufficient.

[1] Penal Law § 170.20 states: "A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument."

A "[f]orged instrument" is defined as "a written instrument which has been falsely made, completed or altered" (Penal Law § 170.00 [7]). A "[w]ritten instrument" is defined as

"any instrument or article . . . containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person" (Penal Law § 170.00 [1]).

Therefore, to be facially sufficient, an accusatory instrument charging possession of a forged instrument must set forth allegations{**61 Misc 3d at 674} that the defendant (1) possessed a forged instrument, (2) knew the instrument was forged and (3) intended to deceive, defraud or injure another (Penal Law § 170.20).

The instant matter is factually similar to the case of People v Newer Garcia (Crim Ct, NY County, 2018, docket No. 2017NY055836). In Garcia, this court surmised that the mere allegation that the defendant was observed operating a motor vehicle with a forged temporary license plate, without additional details of the surrounding circumstances, failed to establish that the defendant had knowledge that the temporary license plate was indeed forged. It is well established that possession on one's person permits the inference that a person knows what he/she possesses (see People v Reisman, 29 NY2d 278 [1971]). However, when the difference between a forged instrument and a genuine instrument is not readily apparent to a layperson, guilty knowledge may not be inferred unless the People allege additional facts such as the circumstances surrounding the defendant's possession (People v Johnson, 65 NY2d 556 [1985]; People v Roa, 8 Misc 3d 333 [2005]). "The mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that defendant had knowledge of the forged nature of the instrument" (Johnson, 65 NY2d at 561; Roa, 8 Misc 3d at 335; People v Green, 53 NY2d 651 [1981]; People v Silberzweig, 58 AD3d 762 [2d Dept 2009]; People v Di Mauro, 113 AD2d 840 [2d Dept 1985]).

As in Garcia, the defendant here is observed operating a motor vehicle; however, there are no additional factual allegations that demonstrate the defendant was an owner or had possessory interest over the vehicle. The allegations that (1) the vehicle defendant was operating had a license plate that was not registered to the vehicle, (2) the section of the license plate where the permit number was located stated "Tag #" instead of "Permit #," (3) there was no effective date or time or expiration for the permit, and (4) the issuing dealer for the temporary Texas plate was located in Miami, Florida, do not alone lead to the inference that defendant had knowledge of the fact that it was forged. The absence of facts necessary to establish that the defendant was anything more than the operator of the motor vehicle makes it unfeasible for this court to reasonably infer that the defendant knew that the license plate affixed to the vehicle was forged. Mere use of a vehicle does not establish a possessory interest. Without additional details surrounding the circumstances of the defendant's possession, the accusatory{**61 Misc 3d at 675} instrument fails to establish the requisite element that defendant had "knowledge" the Texas license plate was forged or that he "intended to deceive, defraud or injure another" (Roa, 8 Misc 3d at 335; People v Rivera, 82 NY2d 695 [1993]; People v Velez, 149 Misc 2d 592 [Crim Ct, Kings County 1990]; People v Simmons, 139 Misc 2d 859, 860-861 [Crim Ct, Bronx County 1988]; compare with People v Thorne, 50 Misc 3d 775 [Crim Ct, Bronx County 2015]; People v Stephens, 177 Misc 2d 819 [Crim Ct, Kings County 1998]).

Accordingly, defendant's motion to dismiss count 1, criminal possession of a forged instrument in the third degree (Penal Law § 170.20), is granted.

The accusatory instrument alleging a violation of Penal Law § 270.05 (2) is facially sufficient.

[2] Penal Law § 270.05 (2) states:

"A person is guilty of unlawfully possessing noxious material when he possesses such material 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."

The definition of "noxious material" is "any container which contains any drug or other substance capable of generating offensive, noxious or suffocating fumes, gases or vapors, or capable of immobilizing a person" (Penal Law § 270.05 [1]). Under Penal Law § 270.05 (3), "[p]ossession of noxious material is presumptive evidence of intent to use it or cause it to be used in violation of this section." Nevertheless, according to section 270.05 (5), "Self-defense spray devices not prohibited . . . , it shall not be unlawful for a person eighteen years of age or older to possess a self-defense spray device . . . ." At first glance, defendant appears to fall under the protection of section 270.05 (5). However, article 265 of the Penal Law enumerates exemptions pertaining to noxious materials and states that the self-defense spray exception "shall not apply to a person who: . . . has been previously convicted in this state of a felony or any assault" (Penal Law § 265.20 [a] [14] [b] [ii]). In this case, defendant was previously convicted of two felonies, grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree, on March 22, 2007 (see cycles 1, 2). Therefore, Penal Law § 270.05 (5) does not apply.

The defendant also argues that in order to convert the accusatory instrument into an information, this court should{**61 Misc 3d at 676} require the People to produce a laboratory report to confirm the contents of the cannister, reasoning that conclusory statements "do not constitute a prima facie case that the substance in question was in fact the unlawful substance charged" (defendant's mot to dismiss at 10-11 ¶¶ 26-27). The defendant contends that the officer's determination that the substance inside the cannister was pepper spray in addition to defendant's statement, "I thought pepper spray was legal here," does not identify the substance inside the cannister as pepper spray. The People failed to reply to defendant's argument to dismiss Penal Law § 270.05 (2) for facial insufficiency.

The issue at hand is how much proof will suffice to establish the presence of noxious material to render the accusatory instrument facially sufficient. New York courts have held that a lab test is not needed to establish a prima facie case for possession of illegal substances where the accusatory instrument alleges the arresting officer's professional training and experience in recognizing the specific substance in the defendant's possession and, in addition, provides the basis for believing that the substance in the defendant's possession was illegal (see People v Smalls, 26 NY3d 1064, 1067 [2015]; People v Kalin, 12 NY3d 225, 231 [2009]; People v McMillan, 125 Misc 2d 177, 180 [1984]). "Standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement" (Kalin, 12 NY3d at 229, citing Dumas, 68 NY2d at 731). On the other hand, while including detailed phrasing like "the substance was 'white in color' and 'powdery,' or 'off-white' and 'rock-like' in appearance . . . [or] 'green and leafy' " may be the safest practice, the absence of such language would not render the information jurisdictionally defective (Kalin at 232).

What is required, however, is that the "factual allegations . . . establish the basis of the arresting officer's belief that the substance seized was . . . illegal" (id. at 229). In other words, detailed language in the accusatory instrument describing the appearance of the substance or its packaging is one possible scenario that would satisfy the requirement. Another possible scenario, as explained in Kalin, is if the officer alleges that the accused made a statement identifying the illegal material (id.). By doing so, the accusatory instrument would adequately support the arresting officer's belief that the substance seized was illegal and is sufficient to establish a prima facie case.{**61 Misc 3d at 677}

The defense argues that, under Kalin, in order to adequately plead possession of certain contraband, it is required that the accusatory instrument include descriptive details about the appearance of the substance, or in other words, "more than mere boilerplate language regarding training and experience" must exist (defendant's mot to dismiss at 10 ¶ 25). Although the defendant may be correct, in this context, while Officer Patrone does not allege any special training in identifying noxious substances, the defendant's identifying statement, "I thought pepper spray was legal here," is the exact example set forth in Kalin. Defendant's statement acknowledging the contents of the cannister as pepper spray is sufficient to establish a prima facie case for possession of a noxious substance. A field test or laboratory report confirming that the substance recovered is a controlled substance is not necessary here. Accordingly, the charge of unlawful possession of noxious material, Penal Law § 270.05 (2), is facially sufficient and defendant's motion to dismiss is denied as to count 2.

The accusatory instrument alleging a violation of Administrative Code § 10-131 (e) (1) is facially insufficient.

[3] Administrative Code § 10-131 (e) (1) states:

"[i]t shall be unlawful for any person to manufacture, sell or offer for sale, possess or use, or attempt to use, any lachrymating, asphyxiating, incapacitating or deleterious gas or gases, or liquid or liquids, or chemical or chemicals, without a permit issued by the police commissioner under such regulations as the commissioner or the council may prescribe."

Defendant asserts that the accusatory instrument is legally insufficient as to this charge because it does not affirmatively show that the defendant does not fall within the exception in the statute. Specifically, the defendant argues that a sufficient accusatory instrument must plead that the defendant did not have "a permit issued by the police commissioner" to possess pepper spray (Administrative Code § 10-131 [e] [1]). The People failed to reply to defendant's argument to dismiss Administrative Code § 10-131 (e) (1) for facial insufficiency.

"Generally, when the defining statute contains an exception, the burden is on the People to plead and prove that the crime is not within the exception" (People v Lammy, 29 Misc 3d 1222[A], 2010 NY Slip Op 51946[U], *3 [2010], citing People v Kohut, 30 NY2d 183 [1972]; People v Santana, 7 NY3d 234 {**61 Misc 3d at 678}[2006]; People v Sylla, 7 Misc 3d 8 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; People v Flowers, 8 Misc 3d 516 [Crim Ct, NY County 2005]). The accusatory instrument "must contain factual allegations which sufficiently negate the exceptions in order to establish each element of the offense" (People v Villalobos, 41 Misc 3d 1219[A], 2013 NY Slip Op 51772[U], *4 [2013], citing Kohut). However, "when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense" (Kohut, 30 NY2d at 187).

This case is similar to People v Lammy, where the court held that when a statute contains an exception, the People are required to plead and negate the existence of a relevant permission (Lammy, 29 Misc 3d 1222[A], 2010 NY Slip Op 51946[U]). In that case, the statute at issue, Administrative Code § 10-131 (i) (3), stated "[i]t shall be unlawful for any person not authorized to possess a pistol or revolver within the city of New York to possess pistol or revolver ammunition, provided that a dealer in rifles and shotguns may possess such ammunition." In Lammy, the court dismissed the indictment reasoning that although the indictment alleged that the defendant was not authorized to possess a firearm or ammunition, no facts were presented to the grand jury to prove the element that the charged defendant did not fall within an enumerated category of persons authorized to possess a weapon.

Here, Administrative Code § 10-131 (e) (1) says in sum and substance that possession of pepper spray is not a crime if the person in possession has a permit issued by the police commissioner. The exception is similar to Administrative Code § 10-131 (i) (3) in Lammy where the exception was found within the statute, and therefore, it is the People's burden to plead and prove that the crime is not within the exception. However, unlike the accusatory instrument in Lammy, the accusatory instrument in this case does not even state that the defendant was not authorized to possess lachrymating, asphyxiating, incapacitating or deleterious gas or gases. In other words, "there is no objective conduct that could lead one to conclude or infer that a defendant was or was not granted such permission" (Villalobos, 41 Misc 3d 1219[A], 2013 NY Slip Op 51772[U], *4). Here, the accusatory instrument is void of language indicating that defendant did not have a permit or was not otherwise authorized to carry pepper spray. Accordingly, the charge of Administrative Code § 10-131 (e) (1) is {**61 Misc 3d at 679}facially insufficient and the defendant's motion to dismiss is granted as to count 3.

Motion to Suppress Physical Evidence

The branch of the defendant's motion that is to suppress physical evidence allegedly recovered from the defendant at the time of his arrest (CPL 710.20 [1]) is granted to the extent that a Mapp/Dunaway hearing is ordered to be held before trial (CPL 710.60 [4]). The motion to suppress the physical evidence recovered from defendant at the time of his arrest is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.

Motion to Suppress Statements

The branch of the defendant's motion that is to suppress evidence of statements allegedly made by the defendant to law enforcement personnel (CPL 710.20 [3]) is granted to the extent that a Huntley/Dunaway hearing is ordered to be held before trial (CPL 710.60 [4]). The motion to suppress such statements is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.

Motion to Preclude under CPL 710.30

The branch of the defendant's motion that is to preclude evidence of unnoticed statements and identifications as notice was not timely served (CPL 710.30 [1] [a], [b]) is denied, with leave granted for the defendant to renew this branch of the motion upon learning that the People intend to introduce such evidence at the defendant's trial.

Motion to Compel Discovery

The branch of the defendant's motion seeking a bill of particulars and discovery is regarded as a request for a bill of particulars pursuant to CPL 200.95 and a demand for discovery pursuant to CPL 240.20. The motion is granted to the extent that the People are to serve a response and a voluntary disclosure form within two weeks of this order if they have not already done so. The People are reminded of their continuing obligations under Brady v Maryland (373 US 83 [1963]).

Motion for a Sandoval Hearing

The branch of the defendant's motion that is to preclude the People from introducing, for the purpose of impeaching the defendant's credibility at trial, evidence of the defendant's prior uncharged criminal, vicious or immoral acts is granted to the extent that it is referred to the trial judge for determination.{**61 Misc 3d at 680}

Reservation of Rights

The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3).

People's Cross Motion for Reciprocal Discovery

The People's cross motion for reciprocal discovery is granted and defendant is directed to comply with the provisions of CPL 240.30 and 250.20.

Now, upon the papers filed in support of the motion, it is ordered that defendant's motion to dismiss the charge of criminal possession of a forged instrument in the third degree (Penal Law § 170.20) is granted; and it is further ordered that defendant's motion to dismiss the charge of unlawfully possessing or selling noxious material (Penal Law § 270.05 [2]) is denied; and it is further ordered that defendant's motion to dismiss the charge of sale or possession of tear gas (Administrative Code § 10-131 [e] [1]) is granted. Ordered that defendant's motion to suppress the physical evidence recovered at the time of his arrest is granted to the extent that a Mapp/Dunaway hearing is ordered to be conducted prior to trial; and it is further ordered that defendant's motion to suppress statement evidence is granted to the extent that a Huntley/Dunaway hearing is ordered to be conducted prior to trial.