Criminal Court of the City of New York, New York County, August 19, 2019

Patrick A.H. Watts, New York City, for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Michael McConnell of counsel), for plaintiff.

Defendant was originally charged with one count of unlawful possession of ammunition (Administrative Code of City of NY § 10-131 [i] [3]), one count of unlawful possession of an ammunition feeding device (Administrative Code § 10-131 [i] [6]), and one count of unlawful possession of rifle or shotgun ammunition or an ammunition feeding device for a rifle or shotgun (Administrative Code § 10-306 [d]). By way of a purported superseding information, defendant now stands charged with only one count of unlawful possession of ammunition (Administrative Code § 10-131 [i] [3]).

Before the People served and filed the purported superseding information, defendant had moved to dismiss all three counts of the original accusatory instrument as facially insufficient, to suppress evidence, and for other relief. For the reasons below, the branch of defendant's motion to dismiss these counts as facially insufficient is granted, and the original accusatory instrument is dismissed without prejudice. All other relief is denied as moot.{**64 Misc 3d at 1034}

The factual portion of the original accusatory instrument alleges, almost in its entirety, that on or about April 22, 2019, at about 6:48 p.m., in front of 101 East 123rd Street in the County and State of New York, Police Officer Kevin Weber "took a loaded high capacity magazine containing forty caliber ammunition from the glove-box inside of the defendant's motor vehicle" and "did a DMV computer check and there was no record of the defendant having a permit for the above-mentioned items." Based upon this narrative alone, defendant was arrested and charged with unlawful possession of ammunition (Administrative Code § 10-131 [i] [3]), unlawful possession of an ammunition feeding device (Administrative Code § 10-131 [i] [6]), and unlawful possession of rifle or shotgun ammunition or an ammunition feeding device for a rifle or shotgun (Administrative Code § 10-306 [d]).

On April 23, 2019, defendant was arraigned on the original accusatory instrument, which the court (Moyne, J.) deemed an information. The court set a motion schedule and adjourned the case to Part A on June 5, 2019, for response and decision.

On June 5, 2019, defendant filed this omnibus motion to dismiss the original accusatory instrument and to suppress evidence. The court (Tsai, J.) instructed the People to file their response off calendar by June 25, 2019, and adjourned the case to July 24, 2019, for decision.

On July 24, 2019, the People filed their response to defendant's motion, filed a new accusatory instrument with the court, and served both on defendant. The new accusatory instrument charged defendant with the sole offense of unlawful possession of ammunition (Administrative Code § 10-131 [i] [3]). The new accusatory instrument alleges, in relevant part, that Officer Weber observed defendant sitting alone in the driver's seat of the car with the engine running. When Officer Weber spoke with defendant, he allegedly stated, in sum and substance, "that he had ammunition in the car but did not have a gun in the car." Thereafter, Officer Weber found a "loaded high capacity magazine containing forty caliber ammunition [in] the glove-box" of the car. Officer Weber knew that it was .40 caliber "pistol or revolver ammunition based upon [his] training and experience as a police officer." Further, Officer Weber was informed by Detective Francis Arias, a member of the New York City Police Department Pistol License Division, that Detective Arias is a legal custodian of records of firearm{**64 Misc 3d at 1035} permits in New York City and after conducting "a diligent search of those records . . . determined that there is no record of a pistol or revolver permit for the defendant." The People also filed a supporting deposition signed by Detective Arias^[FN1] with the court and served it upon defendant.

The court (Clynes, J.) accepted the new accusatory instrument as a superseding information, and arraigned defendant. Defendant maintained that his arguments to dismiss the original accusatory instrument as facially insufficient remained applicable to the new accusatory instrument. Accordingly, the court adjourned the case to August 20, 2019, for decision.

As a threshold issue, the court must decide whether the second accusatory instrument was properly deemed an information and therefore the controlling accusatory instrument (see CPL 100.50 [1]). "The CPL does not authorize the filing of a superseding complaint, only a superseding information" (People v Severino, 47 Misc 3d 1229[A], 2015 NY Slip Op 50891[U],{**64 Misc 3d at 2} *2 [Crim Ct, NY County 2015]; see CPL 100.50 [3]; 170.65 [2]).

Pursuant to CPL 100.40 (1), an information is sufficient on its face when, among other things (1) the allegations provide reasonable cause to believe that the defendant committed the offense charged, and (2) the nonhearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof.

The second accusatory instrument accuses defendant of committing only one offense: unlawful possession of pistol or revolver ammunition (Administrative Code § 10-131 [i] [3]). The statute states that "[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" (id.). "Ammunition" is defined as "[e]xplosives suitable to be fired from a firearm, machine gun, pistol, revolver, rifle, shotgun, assault weapon or other dangerous weapon" (Administrative Code § 10-301 [7]).

In People v Volkes (1 Misc 3d 829, 832 [Crim Ct, Richmond County 2003]), the court held that, to convert a misdemeanor{**64 Misc 3d at 1036} complaint to an information charging unlawful possession of rifle or shotgun ammunition in violation of Administrative Code § 10-306, "the prosecution must demonstrate that the ammunition is suitable to be fired." "In order to determine that said ammunition is suitable to be fired[,] the People must have the ammunition tested, attach a ballistics report or attach an eyewitness statement that he observed the ammunition being fired" (id. at 831 [internal quotation marks omitted]). Volkes has been extended to violations of Administrative Code § 10-131 (i) (3) (see People v Gibbs, 35 Misc 3d 1244[A], 2012 NY Slip Op 51092[U] [Sup Ct, Bronx County 2012]; People v Hayes, 11 Misc 3d 1084[A], 2006 NY Slip Op 50697[U] [Crim Ct, NY County 2006]).

[1] Here, when the second accusatory instrument was served upon defendant and filed with the court, the People did not file a ballistics report, or any other competent proof to show that the ammunition allegedly possessed by defendant was suitable to be fired. Therefore, the second accusatory instrument is not an information, but rather an unconverted misdemeanor complaint. "[A]n attempt by the People to supersede with a mere complaint must be viewed as a nullity, and the case must continue under the original accusatory instrument" (People v Lowe, 61 Misc 3d 370, 372-373 [Crim Ct, Queens County 2017]; People v Hussein, 177 Misc 2d 139, 146 [Crim Ct, Kings County 1998]).

Dismissal for Facial Insufficiency

Pursuant to CPL 100.40 (1), an information is sufficient on its face when, among other things, "[t]he factual part of a misdemeanor complaint [alleges] 'facts of an evidentiary character' (CPL 100.15 [3]) demonstrating 'reasonable cause' to believe the defendant committed the crime charged (CPL 100.40 [4] [b])" (People v Dumas, 68 NY2d 729, 731 [1986]). "Conclusory allegations are insufficient" (People v Alston, 9 Misc 3d 1046, 1047 [Crim Ct, NY County 2005], citing Dumas, 68 NY2d 729).

Defendant argued that the original accusatory instrument was facially insufficient, on the grounds that the People (1) failed to adequately allege that defendant constructively possessed the ammunition feeding device, and therefore the ammunition therein; (2) failed to convert the charges related to ammunition possession because they did not file a ballistics report showing that the ammunition is operable; and (3) failed to affirmatively show that defendant does not fall within the exceptions to unlawful possession of ammunition or an ammunition{**64 Misc 3d at 1037} feeding device, as set forth in the respective statutes (see Watts affirmation ¶¶ 4-11).

The People did not respond to defendant's arguments, "because [they] believe[d] the defendant's arguments regarding facial sufficiency [would] be rendered moot at the time the superseding information [was] filed and served" (see McConnell affirmation ¶ 3).^[FN2] However, as discussed above, the second accusatory instrument was a nullity.

Turning to the merits of defendant's arguments, possession is an essential element of all three charges of the original accusatory instrument.^[FN3] To possess something is to "have physical possession or otherwise to exercise dominion or control over tangible property" (Penal Law § 10.00 [8]). "A person who exercises dominion or control over property not in his or her physical possession is said to have that property in his or her 'constructive possession' " (CJI2d[NY] Possession Physical and Constructive). Under a theory of constructive possession, "the People must show that the defendant exercised 'dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v Manini, 79 NY2d 561, 573 [1992] [citations omitted]). Alternatively, constructive possession can be established based on defendant's admission of ownership (see People v Perez, 125 AD2d 236, 237-238 [1st Dept 1986]; People v Vastola, 70 AD2d 918 [2d Dept 1979]). Additionally, Penal Law § 265.15 (3) states, in relevant part, that "[t]he presence in an automobile . . . of any . . .{**64 Misc 3d at 1038} large capacity ammunition feeding device . . . is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found."

[2] Unlike the second accusatory instrument, the original accusatory instrument here does not allege that defendant admitted to ownership of the ammunition. Nor does it allege that defendant was present inside the vehicle when the ammunition was found, so the automobile presumption in Penal Law § 265.15 is inapplicable.^[FN4] Rather, the original accusatory instrument states only that Officer Weber "took a loaded high capacity magazine containing forty caliber ammunition from the glove-box inside of the defendant's motor vehicle." The words "defendant's motor vehicle" are conclusory language of ownership or possession (see e.g. People v Rosado, 192 Misc 2d 184, 186 [Crim Ct, NY County 2002] ["the complaint merely alleges defendant's possession in conclusory language, by referring to the vehicle as 'defendant's vehicle' "]; People v Lebron, 22 Misc 3d 217, 221 [Crim Ct, NY County 2008] ["the officer's statement that the apartment was 'the defendant's' is completely conclusory"]).

Thus, the element of possession for all three charges is facially insufficient. As an additional ground for dismissal, the Appellate Division, First Department recently held that

"the relevant language in [Administrative Code §] 10-131 (i) (3), which makes it a crime to possess pistol or revolver ammunition unless authorized to possess a pistol or revolver, constitutes an exception and not a proviso . . . [,]

"thereby constituting an essential element of the offense that the People were required to negate" (People v Tatis, 170 AD3d 45, 47-48 [1st Dept 2019], lv denied 33 NY3d 981 [2019] [emphasis added]).

Here, unlike the second accusatory instrument, the original accusatory instrument does not affirmatively allege that defendant was not authorized to possess a pistol or revolver. The original accusatory instrument must therefore be dismissed in its entirety. Accordingly, the court need not address defendant's remaining grounds in support of dismissal.

Therefore, the branch of defendant's motion to dismiss is granted, and the original accusatory instrument is dismissed{**64 Misc 3d at 1039} without prejudice (see Gary Muldoon, Handling a Criminal Case in New York § 3:99 [Sept. 2018 update]; People v Key, 45 NY2d 111, 117 [1978]).

Suppression of Evidence and Other Relief

In light of the court's decision, defendant's requests for suppression and other relief are denied as moot.

Accordingly, it is hereby ordered that the branch of defendant's motion to dismiss the original accusatory instrument for facial insufficiency is granted, and the original accusatory instrument is dismissed without prejudice; and it is further ordered that the branch of defendant's motion for the suppression of evidence and for other relief is denied as moot; and it is further ordered that the People are granted leave to refile the charges in accordance with this decision.

Administrative Code § 10-131 (i) (6) states, "It shall be unlawful for any person to possess any ammunition feeding device designed for use in a firearm, except as provided in subparagraphs (a), (b), (c), (d) and (e) of this paragraph" (emphasis added).

Administrative Code § 10-306 (d) states,

"It shall be unlawful for any person who is required to have a permit in order to possess a rifle or shotgun and who has not been issued such permit to possess rifle or shotgun ammunition or an ammunition feeding device which is designed for use in a rifle or shotgun" (emphasis added).