People v. Ramirez

64 Misc.3d 644

104 N.Y.S.3d 843

The PEOPLE of the State of New York

v.Juan RAMIREZ, Defendant.

2018BX022823

Criminal Court, City of New York.

Decided on May 29, 2019

For the People: Assistant District Attorney, Bronx District Attorney's Office, 198 East 161st Street, Bronx, NY 10451

For the Defendant: Casey Trimble, Esq., The Legal Aid Society Bronx County, Criminal Defense Practice, 260 East 161st Street, 10th Floor, Bronx, NY 10451

Jeanine R. Johnson, J.

By notice of motion to dismiss, filed on January 15, 2019, Defendant moves to dismiss count one of the complaint pursuant to Criminal Procedure Law (hereinafter "C.P.L.") § 210.25(3).

Upon review of the Defendant's moving papers, the People's Affirmation in Opposition and the relevant documents in the official court file, this Court denies the Defendant's motion to dismiss count one¹ of the accusatory instrument.

ARREST

The accusatory instrument, sworn to by PO Robert Pecorella of 41 PCT, ShieldNo. 18446, states that on or about May 28, 2018, at approximately 8:20 PM at Northeast corner of Lafayette Avenue and Longfellow Avenue, County of the Bronx, State of New York:

At the above time and place, he observed defendant to have on his person, in his front right pants pocket, one (1) baton (black jack).

Deponent further states that he further observed defendant to have on his person, in his front right pants pocket, one (1) small ziplock bag containing a dried, green, leafy substance with a distinctive odor.

Deponent states, that based upon deponent's training and experience, said black jack is designed primarily as a weapon, consisting of a cylindrical shaped stick of less than arm's length made of wood, plastic, or metal with a flexible leather grip used to inflict serious injury upon a person by striking or choking.

Deponent states, that based upon deponent's training and experience, which includes training in the recognition of controlled substances and marijuana, a dried, green leafy substance with a distinctive odor, and their packaging, the aforementioned substances are alleged and believe to be marijuana.

Defendant was issued a Desk Appearance Ticket on May 28, 2018, arraigned on July 25, 2018 by criminal complaint dated July 2, 2018, and charged with Criminal Possession of a Weapon in the Fourth Degree in violation of Penal Law (hereinafter "P.L.") § 265.01(1) and Unlawful Possession of Marijuana in violation of P.L. § 221.05 arising out of an alleged occurrence on May 28, 2018.

MOTION TO DISMISS

The Defendant moves this Court for an Order, dismissing count one of the Complaint, Criminal Possession of a Weapon in the Fourth Degree P.L. § 265.01(1), on the ground that the statute, as it specifically relates to a "black jack" or "baton", violates the Second Amendment to the United States Constitution ( U.S. Const. Amends II and XIV ). The People, by Memorandum of Law filed March 1, 2019, opposed Defendant's Motion.

RELEVANT STATUTES

New York Civil Practice Law and Rules (hereinafter "C.P.L.R.") § 1012(b)(1) and (3) states:

(b) Notice to attorney-general, city, county, town or village where constitutionality in issue.

When the constitutionality of a statute of the state, or a rule and regulation adopted pursuant thereto is involved in an action to which the state is not a party, the attorney-general, shall be notified and permitted to intervene in support of its constitutionality.

The court having jurisdiction in an action or proceeding in which the constitutionality of a state statute, local law, ordinance, rule or regulation is challenged shall not consider any challenge to the constitutionality of such state statute, local law, ordinance, rule or regulation unless proof of service of the notice required by this subdivision is filed with such court.

C.P.L. § 170.35(1)(c) states:

An information, a simplified information, a prosecutor's information or a misdemeanor complaint, or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when:

(c) The statute defining the offense charged is unconstitutional or otherwise invalid.

P.L. § 5.00 states:

The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law.

P.L. § 265.01(1) states:

A person is guilty of criminal possession of a weapon in the fourth degree when:

(1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star.

DISMISSAL FOR UNCONSTITUTIONALITY OF P.L. 265.01(1) AND VIOLATION OF DEFENDANT'S RIGHT TO BEAR ARMS

As an initial matter, the instant matter does not contemplate an indictment. It is settled that case law pertaining to the sufficiency of allegations in indictments is not generally applicable to cases involving informations. see People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987). As such, the Court's decision is not based upon facial sufficiency of the motion herein as prescribed by C.P.L. § 210.25(3) but instead the standard as prescribed by C.P.L. § 170.35(1)(c).

Additionally, when the constitutionality of a statute of the State of New York is involved in an action in which the State is not a party, the Office of the Attorney General of the State of New York (hereinafter "OAG") must be notified and permitted to intervene in support of its constitutionality pursuant to C.P.L.R. § 1012(b)(1). Moreover, C.P.L.R. § 1012(b)(3) provides that the court having jurisdiction in an action or proceeding in which the constitutionality of a statute is challenged shall not consider any challenge to the constitutionality of such statute unless proof of service of same upon the OAG is filed with such court.

Here, the Defendant has not demonstrated that the OAG was notified of the instant constitutional challenge pursuant to C.P.L.R. § 1012 (b)(1) and (3). However, this Court takes judicial notice of service of the required notice upon the OAG to wit, the OAG acknowledged receipt of service of same in its letter to the NYC Criminal Court Bronx Borough Chief Clerk. see Matter of Avella v. Batt, 33 A.D.3d 77, 820 N.Y.S.2d 332 (3rd Dep't 2006) (court rendered decision upon sua sponte notice to the OAG). The OAG determined that it will not intervene and requested that the parties notify it of this Court's decision regarding the constitutional contentions discussed herein. The Court now turns to the merits of the Defendant's Second Amendment challenge.

The Defendant moves this Court for an order dismissing count one, Criminal Possession of a Weapon in the Fourth Degree, on the ground that the alleged possession of a "black jack" or "baton" is not a crime and prosecution for it violates his right to keep and bear arms under the Second Amendment to the U.S. Constitution for the reasons set forth in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and its progeny.

The Defendant points out that in Caetano the Supreme Court of the United States invalidated a Massachusetts law prohibiting the possession of stun guns finding that, based upon Heller , the Second Amendment applies to "all instruments that constitute bearable arms including those not in existence at the time of the founding" (Affirmation of Defendant's Counsel at 9). The Defendant implies that "mere possession" of a baton should be viewed as bordering on the "frivolous" and a "grave threat to the fundamental right to self-defense" as Justice Alito decried in a Caetano concurring opinion regarding possession of stun guns (Affirmation of Defendant's Counsel at 9). The Defendant also notes that in Singas II , the U.S. District Court for the Eastern District of New York found that P.L. § 265.01 as applied to nunchaks is unconstitutional (Affirmation of Defendant's Counsel at 11). The Defendant argues that consistent with Singas II , the People have the burden of proving the weapon is not commonly used by law abiding citizens and anecdotally, that batons are commercially marketed for self-defense, non-lethal and commonly used for that purpose (Affirmation of Defendant's Counsel at 11). The Defendant further argues that there is no "meaningful distinction" that can be drawn between cases involving batons and nunchakas because of their close similarity in design; and, that since nunchuckas cannot be categorically banned, then it stands to reason that batons cannot be categorically banned.

The People oppose Defendant's assertions and argue that, historically, concealed weapons have been regulated. The People state that Caetano does not prohibit the regulation of batons and pursuant to the holdings in Singas and Persce , batons are uncommon and have a propensity for unlawful use. These factors, according to the People render P.L. §§ 265.01(1) and (2) constitutional under an intermediate scrutiny review for Second Amendment analysis. The People maintain that the Defendant has not met his burden of demonstrating the infirmity of the statute beyond a reasonable doubt and that the New York State Legislature is the appropriate venue for examination of Defendant's statutory challenge.

DECISION

"[A] statute is presumptively constitutional and should be construed in such a manner as to uphold its constitutionality". Schultz Mgmt. v. Bd. of Standards & Appeals of City of New York , 103 A.D.2d 687, 689, 477 N.Y.S.2d 351, 354 (1984), aff'd , 64 N.Y.2d 1057, 479 N.E.2d 247, 489 N.Y.S.2d 902 (1985) quoting ( McKinney's Statutes § 150 ); see also Eaton v. New York City Conciliation & Appeals Bd., 56 N.Y.2d 340, 345, 452 N.Y.S.2d 358, 437 N.E.2d 1115 (1982). "[T]he party alleging unconstitutionality (of a statute) has a heavy burden, one of...