Criminal Court of the City of New York, Queens County, April 17, 2019

Legal Aid Society (Joel Schmidt of counsel) for defendant.

Richard A. Brown, District Attorney (Jessica Coalter of counsel), for plaintiff.

By motion filed January 7, 2019, defendant moves the court to declare Penal Law § 265.01 unconstitutionally vague, and unconstitutional under the Second Amendment to the United States Constitution. Defendant also moves to dismiss the second count in the information pursuant to Criminal Procedure Law §§ 100.40, 170.30, 170.35 and 170.40. After review of the motion papers and the respective arguments therein, the accusatory instrument, other papers on file with the court, and prior court proceedings, defendant's motion is denied in its entirety.

Defendant was arrested and charged with one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]) and one count of possession of knives or instruments (Administrative Code of City of NY § 10-133 [c]).

{**63 Misc 3d at 899}These charges stem from events alleged to have occurred on March 23, 2018, at approximately 6:46 p.m. at the intersection of 227 Street and 112 Avenue in Queens County. Police Officer (PO) Kevin Winters allegedly observed defendant with a knife clipped to his pants pocket. PO Winters concluded that the knife was a gravity knife based upon his training and because the knife activated to an open and locked position through the use of force.

Defendant was arraigned on March 24, 2018, pleaded not guilty, and was released on his own recognizance.

Defendant filed the instant motion on January 7, 2019, claiming that: (1) Penal Law § 265.01 (1) is unconstitutionally vague, (2) Penal Law § 265.01 and Administrative Code § 10-133 (c) are unconstitutional pursuant to Maloney v Singas (351 F Supp 3d 222 [ED NY, Dec. 14, 2018]), (3) Penal Law § 265.01 is unconstitutional because it is a strict liability offense, (4) Administrative Code § 10-133 (c) is facially insufficient, and (5) the information should be dismissed in the interest of justice.

The People filed a response opposing defendant's motion on February 4, 2019.

On March 29, 2019, defense counsel alerted the court and the People to a decision from the United States District Court for the Southern District of New York (Cracco v Vance, 2019 WL 1382102, 2019 US Dist LEXIS 52292 [SD NY, Mar. 27, 2019, 14 Civ 8235 (PAC)]), and stated that this court should consider that decision in deciding this motion.

[1] Defendant contends that Penal Law § 265.01 (1) is unconstitutionally vague because it fails to provide notice to the ordinary citizen of what constitutes a criminal act. Penal Law § 265.01, and subdivision (1) in particular, specifies certain types of weapons, such as gravity knives. Penal Law § 265.00 (5) defines a gravity knife as that which contains a blade, and locks into place when released from the handle through the use of centrifugal force.

Facial challenges to Penal Law § 265.01, as it pertains to gravity knives, as vague have been rejected by several courts (People v Herbin, 86 AD3d 446, 447 [1st Dept 2011]; Copeland{**63 Misc 3d at 900} v Vance, 893 F3d 101 [2d Cir 2018]). This court also rejects defendant's claim.^[FN*]

Defendant argues that the District Court's decision Cracco, declaring Penal Law § 265.01 unconstitutional as applied in that case, mandates a declaration that Penal Law § 265.01 is unconstitutional. That argument is meritless. The District Court's decision was based upon the specific and unique facts presented in that case. The defendant in Cracco had already been convicted once for possession of a gravity knife and claimed that he was inevitably going to be arrested again for the same offense. Moreover, defendant there maintained throughout the proceedings that the arresting officer had needed multiple attempts in order to perform the "wrist test"—something defendant here does not contend. Clearly, the District Court's decision was limited to the facts and circumstances presented. In fact, the District Court commented on the Second Circuit's recent refusal to strike down Penal Law § 265.01 as vague in Copeland by noting that it was not dealing with a [*2]facial challenge like the Second Circuit, but rather an as applied claim. Thus, the District Court's holding that the statute is unconstitutional as applied to that particular defendant is not grounds to find the statute unconstitutional in this facial challenge.

Defendant next claims that, pursuant to Maloney v Singas, both counts of the information should be dismissed as violations of the Second Amendment. In Maloney, the United States District Court for the Eastern District of New York held that a blanket ban on "nunchakus" was unconstitutional pursuant to Heller and its progeny (District Court of Columbia v Heller, 554 US 570 [2008]). Defendant's claim is steeped in a fundamental misunderstanding of Supreme Court precedent.

Although it is accurate that Heller held the District of Columbia's ban on possession of useable firearms in the home violated the Second Amendment under any level of scrutiny because it "amount[ed] to a prohibition of an entire class of 'arms' " (id. at 628), there is no equivalent ban in New York on gravity knives. In contrast to a blanket ban, the statute{**63 Misc 3d at 901} exempts possession of a gravity knife for the purpose of hunting, trapping or fishing, all of which are permitted (see Penal Law § 265.20 [a] [6]). Moreover, the laws restricting the possession of certain knives based on their specific capabilities were enacted some 60 years ago to respond to a specific perceived risk to public safety (see United States v Irizarry, 509 F Supp 2d 198, 206-208 [ED NY 2007]).

Defendant here fails to set forth any facts or authority to support his assertion that gravity knives implicate the self-defense issues at the core of the Second Amendment analysis in Heller. Thus, his constitutional claim cannot overcome the strong presumption of constitutionality (see People v Stuart, 100 NY2d 412, 422 [2003]; Brady v State of New York, 80 NY2d 596 [1992]; People v Scalza, 76 NY2d 604, 607 [1990]).

To be facially sufficient, an accusatory instrument must specify the offense(s) charged, and contain factual allegations of an evidentiary nature that tend to support them (see CPL 100.15 [2], [3]). Such factual allegations, together with any supporting depositions or other documents, must consist of nonhearsay allegations that provide reasonable cause to believe that the defendant committed the offense(s) charged, which if true, establish each and every element of those charges (see CPL 100.40 [1]; People v Henderson, 92 NY2d 677, 679 [1999]). "If the defining statute contains an exception, the [accusatory instrument] must allege that the crime is not within the exception" (People v Kohut, 30 NY2d 183, 187 [1972]). Sufficiency of an accusatory instrument is a non-waivable jurisdictional defect that requires dismissal if not satisfied (see People v Alejandro, 70 NY2d 133 [1987]).

Essentially, a facially sufficient accusatory instrument or information must provide reasonable cause that the defendant committed the charged offenses and establish a prima facie case against him. Not surprisingly, the People bear the burden of satisfying these requirements by doing so in the text of the information (see People v Jones, 9 NY3d 259, 261 [2007]). This requirement is neither synonymous with the People's burden at trial, which requires proof beyond a reasonable doubt, nor rises to the level of evidence sufficient to survive a motion for a trial order of dismissal (People v Kalin, 12 NY3d 225, 230 [2009]).

In reviewing and evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed{**63 Misc 3d at 902} an offense, the court must do so in the light most favorable to the People (see People v Williams, 84 NY2d 925 [1994]; People v Contes, 60 NY2d 620 [1983]; People v Barona, 19 Misc 3d 1122[A], 2008 NY Slip Op 50814[U], *2 [Crim Ct, NY County 2008]). Moreover, the information "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]). Reasonable cause exists when "evidence or information which appears reliable discloses facts or circumstances . . . of such weight and persuasiveness as to convince a person of ordinary intelligence . . . that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).

Finally, while mere conclusory allegations are insufficient (People v Dumas, 68 NY2d 729 [1986]), an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v Mills, 1 NY3d 269 [2003]; People v Bello, 92 NY2d 523 [1998]; People v Mayo, 36 NY2d 1002 [1975]). Rather, they need only provide an accused with adequately detailed factual allegations of an evidentiary nature sufficient for a defendant to prepare a defense and prevent him from being tried twice for the same offense (People v Kasse, 22 NY3d 1142 [2014]; Kalin, 12 NY3d at 230).

Administrative Code § 10-133 (c) states:

"It shall be unlawful for any person in a public place, street or park, to wear outside of his or her clothing or carry in open view any knife with an exposed or unexposed blade unless such person is actually using such knife for a lawful purpose as set forth in subdivision d of this section."

[2] Here, the information establishes that defendant was seen wearing a knife clipped to his pants pocket. That knife was then recovered by the arresting officer. In the light most favorable to the People, these factual allegations establish the elements of count two. Defendant's motion for facial insufficiency is thus denied.

Defendant's motion to dismiss the information in furtherance of justice is also denied. Given counsel's reliance on a potpourri of sociological and historical sources, he ostensibly predicates it on his dislike for and disagreement with New York's criminalization of gravity knives. The only legal support{**63 Misc 3d at 903} he offers, however, is People v Trowlles (NYLJ 1202664428367 [Sup Ct, Bronx County, July 11, 2014, Webber, J.]). Irrespective of the fact that Trowlles was authored by an exceptionally well-regarded jurist, it is neither binding nor applicable since such determinations rest solely and exclusively within the sound discretion of the court (People v Wingard, 33 NY2d 192 [1973]). Exercise of that discretion will, of course, inevitably result in reasonable and legitimate differences among the judiciary; what may be in furtherance of justice to one judge may not to another.

Make no mistake though, sociological and historical sources may be invaluable in persuading legislators to transform the law and assist the judiciary in interpreting it. But they are of no consequence in imploring the judiciary to depart from it. For good measure, counsel also surreptitiously bases his application on defendant's African-American descent—inferring that perhaps he was arrested merely because of his race in the absence of probable cause. If true, however, counsel's remedy is a pretrial suppression hearing, not dismissal in furtherance of justice.

[3] Nevertheless, this court has considered the factors enumerated in CPL 170.40 (1) and determines that counsel's assertions aside, justice would not be served by dismissal of the information (People v Clayton, 41 AD2d 204 [2d Dept 1973]). In evaluating those factors, this court notes that counsel conspicuously avoided addressing many of them, most saliently his client's criminal record. That it is robustly replete with convictions—several of which are felonies—belies dismissal in furtherance of justice.

Finally, as for counsel's palpable disdain for the Queens County District Attorney's plea policies, this court reminds him that the District Attorney commences criminal prosecutions. It follows, therefore, that the District Attorney holds the full deck of plea bargain cards. As such, he determines the policies and parameters under which they will be dealt (see People v Zimmer, 51 NY2d 390, 394 [1980]). True, the District Attorney's Office ought to address each case on an individual rather than wholesale basis (People v Rickert, 58 NY2d 122 [1983]). But counsel's demand for a hearing is baffling. Even assuming authority exists for a hearing on counsel's contempt for the District Attorney's plea policy—which it does not—ordering one would be both fruitless and pointless. Surely, counsel does not suggest that a suitable remedy would be for this court to{**63 Misc 3d at 904} order the People to extend a plea offer defendant finds acceptable. While the judiciary and the People are not separate branches of government, doing so would be as unwise as Chief Justice Marshall recognized it would be 216 years ago.

For the reasons stated, defendant's constitutional challenges to Penal Law § 265.01 are unavailing. His motion to dismiss the information is therefore denied in all respects.